Timothy Gereb v. Sandrea Kuhlman ( 2011 )

MEMORANDUM OPINION
No. 04-11-00428-CV
Timothy GEREB,
Appellant
v.
Sandrea KUHLMAN,
Appellee
From the 408th Judicial District Court, Bexar County, Texas
Trial Court No. 2009-CI-06534
Honorable David A. Berchelmann, Jr., Judge Presiding
PER CURIAM
Sitting: Karen Angelini, Justice
Sandee Bryan Marion, Justice
Phylis J. Speedlin, Justice
Delivered and Filed: December 7, 2011
DISMISSED FOR LACK OF JURISDICTION
On July 1, 2011, appellee filed a motion to dismiss this appeal, claiming that final
judgment was signed on March 17, 2011, and that appellant’s notice of appeal, filed on June 22,
2011, was untimely. On July 27, 2011, appellant filed a response to the motion to dismiss. We
held the motion in abeyance pending filing of the clerk’s record. After the trial court clerk filed a
notification of late clerk’s record, stating that appellant had failed to pay or make arrangements
to pay the fee for preparing the record and that appellant was not entitled to appeal without
04-11-00428-CV
paying the fee, we ordered appellant to provide written proof that either (1) the clerk’s fee had
been paid or arrangements had been made to pay the clerk’s fees, or (2) appellant was entitled to
appeal without paying the clerk’s fee. On August 3, 2011, appellant filed an affidavit of
indigence in this court. Therefore, on August 17, 2011, we abated this appeal to the trial court.
See TEX. R. APP. P. 20.1.
A limited clerk’s record has now been filed in this case. We, therefore, REINSTATE this
appeal on the docket of this court. The limited clerk’s record filed shows that a default judgment
was signed by the trial court on March 17, 2011. Five days later, on March 22, 2011, the trial
court erroneously dismissed the case for want of prosecution. Therefore, within its plenary
power, the trial court modified the March 17, 2011, judgment by signing the order dismissing the
case for want of prosecution. See TEX. R. CIV. P. 329b(d) (“The trial court, regardless of whether
an appeal has been perfected, has plenary power to grant a new trial or to vacate, modify, correct,
or reform the judgment within thirty days after the judgment is signed.”). Thus, the order of
dismissal vacated and superseded the March 17, 2011, judgment. See SLT Dealer Group, Ltd. v.
AmeriCredit Fin. Servs., Inc., 336 S.W.3d 822, 832 (Tex. App.—Houston [1st Dist.] 2011, no
pet. h.).
After the order of dismissal was signed, appellee, plaintiff below, filed a motion to
reinstate the case, arguing to the trial court that because a judgment had been signed on March
17, 2001, the trial court had erroneously dismissed the case for want of prosecution. On April 5,
2011, still within its plenary power, the trial court ordered the following:
On the below date, this Court heard the Motion of Sandrea
Kuhlman, Plaintiff in this cause, to Reinstate this case since
judgment was entered on March 17, 2011, prior to dismissal by
this Court on March 22, 2011. This Court heard and considered the
Motion and is of the opinion that this case should be reinstated.
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04-11-00428-CV
THEREFORE, IT IS ORDERED that this case is hereby
reinstated.
Thus, the trial court reinstated the case on its docket. However, the trial court did not reinstate its
previous judgment of March 17, 2011. See In re Baylor Med. Ctr., 280 S.W.3d 227, 231 (Tex.
2008) (orig. proceeding) (explaining that trial court can reinstate prior judgment and that
appellate deadlines restart from the date the trial court reinstates prior judgment). Because the
March 17, 2011, judgment was not reinstated, there is no final judgment in this case. See Pringle
v. Moon, 158 S.W.3d 607, 610 (Tex. App.—Fort Worth 2005, no pet.) (“When a judgment has
been rendered and later set aside or vacated, the matter stands precisely as if there had been no
judgment.”). And, because there is no final judgment, we are without jurisdiction over this
appeal.
We therefore grant appellee’s motion to dismiss to the extent that we dismiss this appeal
for lack of jurisdiction.
PER CURIAM
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