In the Interest of C.K.M., a Child v. the State of Texas ( 2024 )

Vacate and Dismiss and Opinion Filed February 6, 2024
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00983-CV
IN THE INTEREST OF C.K.M., A CHILD
On Appeal from the 354th Judicial District Court
Hunt County, Texas
Trial Court Cause No. 91555
MEMORANDUM OPINION
Before Justices Molberg, Pedersen, III, and Nowell
Opinion by Justice Molberg
By this appeal, the Texas Department of Family and Protective Services seeks
to challenge the trial court’s September 29, 2023 order sanctioning, on Mother’s and
Father’s motions, the Department for filing a frivolous pleading. The pleading was
filed in a suit the Department filed initially seeking temporary orders requiring
Mother and Father to participate in services for the safety of C.K.M. and
subsequently seeking the termination of Mother’s and Father’s rights to C.K.M.1 See
TEX. FAM. CODE §§ 161.001 (providing for involuntary termination of parent–child
relationship), 264.203 (authorizing suit for temporary services for child’s safety).
1
The initial petition also sought the temporary services for the safety of C.K.M.’s siblings, but the
subsequent petition did not seek the termination of Mother’s and Father’s rights as to the siblings.
Because the order was signed outside the trial court’s plenary power, we vacate the
order as void and dismiss the appeal. See State ex. rel Latty v. Owens, 907 S.W.2d
484, 486 (Tex. 1995) (per curiam).
The sanctions order was signed after the trial court signed an order that, in
part, reads as follows:
2.1 The Court finds that the Temporary Orders for Required
Participation in Services in this case is no longer needed.
2.2. THEREFORE, THE COURT HEREBY terminates the
Temporary Order for Required Participation in Services.
2.3 IT IS THEREFORE ORDERED that [attorney ad litem] earlier
appointed to represent the child is relieved of all duties based on
a finding of good cause.
2.4 The Clerk of this Court is hereby directed to remove this cause
from the Court’s docket and send notice to all parties that this
cause is hereby dismissed.
The trial court signed this order (“the dismissal order”) on August 21, 2023,
following the Department’s nonsuit of its petition for temporary services and petition
for termination. At the time the dismissal order was signed, the sanctions motions
filed by Mother and Father were pending and were to be heard “later this month.”
Also pending were counterpetitions Mother and Father had each filed for the sole
managing conservatorship of C.K.M.
Although the dismissal order did not specifically address the Department’s
termination petition or Mother’s and Father’s sanctions motions and conservatorship
petitions, because the order dismissed “this cause” and directed the Clerk of Court
–2–
to “remove this cause from the Court’s docket,” the order was final and triggered the
running of the trial court’s plenary power. See TEX. R. CIV. P. 329b(d) (trial court
retains plenary power over cause for thirty days after final judgment or order is
signed); In re Guardianship of Jones, 629 S.W.3d 921, 924 (Tex. 2021) (per curiam)
(judgment rendered without conventional trial on merits is final if it actually disposes
of every pending claim and party or “clearly and unequivocally” states it finally
disposes of all claims and parties, even if it does not actually do so); Brashear v.
Victoria Gardens of McKinney, L.L.C., 302 S.W.3d 542, 546 (Tex. App.—Dallas
2009, no pet.) (op. on reh’g) (order dismissing “the case” for want of prosecution
disposed, “on its face,” of all parties and claims and was final, despite appellant’s
argument that the order was interlocutory because it did not dispose of all of her
claims).2 No motion for new trial or to modify judgment was filed, and the trial
court’s plenary power expired September 20, 2023. See TEX. R. CIV. P. 329b(d).
Because an order signed outside the trial court’s plenary power is void, and
an appellate court’s jurisdiction over an appeal taken from a void order is limited to
vacating the void order and dismissing the appeal, we informed the parties that we
would vacate the sanctions order and dismiss the appeal unless the parties
demonstrated the order was not void. See Freedom Commc’ns, Inc. v. Coronado,
2
In Brashear, we rejected appellant’s argument, stating, “We cannot agree with this logic, whereby
the finality of an order depends on its validity. ‘Even void orders must be timely appealed.’” 302 S.W.3d
at 546 (quoting Standifer v. Cepeda, No. 05-05-00725-CV, 2005 WL 2212291, at *1 (Tex. App.—Dallas
Sept. 13, 2005, no pet.) (mem. op.) (other citations omitted)). The dissent appears to apply the same
misguided logic we rejected in Brashear.
–3–
372 S.W.3d 621, 623 (Tex. 2012) (per curiam); Latty, 907 S.W.2d at 486. In letter
briefs filed in response, Mother and Father agree the appeal should be dismissed but
for a different reason: because their motions for sanctions and counterpetitions for
sole managing conservatorship were pending at the time the dismissal order was
signed, the judgment did not dispose of all claims and was not final.
The language of an order can make the order final, however, even though it
should have been interlocutory. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200
(Tex. 2001). An order that expressly disposes of the entire case is not interlocutory
merely because the record does not show a legal basis for the disposition. Id. at 206.
When the language of the order is clear and unequivocal, it must be given effect
despite any other indication that it was not intended to be final. Id.
By dismissing “this cause” and directing the Clerk of Court to “remove this
cause from the Court’s docket,” the trial court expressly disposed of the entire case,
and the order was final, triggering the running of the trial court’s plenary power.
And because no plenary-power-extending motion was filed, the trial court’s plenary
power expired September 20, 2023, and the sanctions order, signed nine days later,
is void. Accordingly, we vacate the sanctions order and dismiss the appeal. See
Latty, 907 S.W.2d at 486.
We reach this conclusion based on principles that both we and the dissent
agree this Court is bound by, namely, that a final judgment is demonstrated by a
“clear indication that the trial court intended the order to completely dispose of the
–4–
entire case,” Lehmann, 39 S.W.3d at 205, and that a clear and unequivocal statement
of finality must be given effect even if review of the record would undermine
finality. Id. at 206; see In re R.R.K., 590 S.W.3d 535, 544 (Tex. 2019) (“If a judicial
decree’s finality is ambiguous, a reviewing court should examine the record to
determine the trial court’s intent.”).
But after recognizing these binding principles, the dissent then fails to apply
them. The dissent does so by flipping the analysis on its head, focusing on alleged
“contrary indicators” of finality in the record to determine whether the dismissal
order is final, rather than beginning and ending with the clear and unequivocal
statement of finality in the dismissal order, which dismissed “this cause” and
directed the Clerk of Court to “remove this cause from the Court’s docket.”3 In this
case, because the language of the dismissal order makes its finality unambiguous,
there is no reason to examine the record to determine the trial court’s intent.
/Ken Molberg//
KEN MOLBERG
230983f.p05 JUSTICE
Pedersen, J., dissenting
3
According to the dissent, one such “contrary indicator” is the consolidation order signed August 22,
2023. But while the order was signed on that date, the trial court’s ruling to consolidate was made August
10, 2023, according to the docket sheet, and according to the purported reporter’s record, was reaffirmed
on August 21, 2023—prior to the signing of the dismissal order. Thus, while we do not believe we may
look beyond the dismissal order to determine its finality, considering its certainty regarding dismissal of
the case and removal from the trial court’s docket, even if we could look to the record, as the dissent does,
we do not interpret the August 22, 2023 order as a “contrary indicator” to finality under the circumstances.
–5–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF C.K.M., A On Appeal from the 354th Judicial
CHILD District Court, Hunt County, Texas
Trial Court Cause No. 91555.
No. 05-23-00983-CV Opinion delivered by Justice
Molberg, Justices Pedersen, III and
Nowell participating.
In accordance with this Court’s opinion of this date, we VACATE the trial
court’s September 29, 2023 sanctions order and DISMISS the appeal.
It is ORDERED that each party bear its own costs of this appeal.
Judgment entered this 6th day of February, 2024.
–6–