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Alfred Cooper v. Sherry Lee Herndon Smith and Alphonso Smith ( 2024 )


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  • DISMISS and Opinion Filed April 16, 2024
    S  In The
    Court of Appeals
    Fifth District of Texas at Dallas
    No. 05-23-00168-CV
    ALFRED COOPER, Appellant
    V.
    SHERRY LEE HERNDON SMITH AND ALPHONSO SMITH, Appellees
    On Appeal from the County Court at Law No. 1
    Dallas County, Texas
    Trial Court Cause No. CC-20-00276-A
    MEMORANDUM OPINION
    Before Chief Justice Burns, Justice Pedersen, III, and Justice Goldstein
    Opinion by Chief Justice Burns
    Appellant appeals from the trial court’s October 28, 2022 order of dismissal
    for want of prosecution. The trial court previously dismissed the case for want of
    prosecution by order signed on December 7, 2020. Appellant filed a timely motion
    to reinstate that was overruled by operation of law on February 22, 2021. See TEX.
    RS. CIV. P. 4, 165a(3). Although the trial court’s plenary power to reinstate the
    case expired thirty days later on March 24, 2021, the trial court signed an order
    granting the motion on April 6, 2021. Id. 165a(3). In light of these circumstances.
    we questioned our jurisdiction over this appeal because it appeared that the trial
    court’s April 6, 2021 order granting appellant’s motion to reinstate and the
    subsequent dismissal order that is the subject of this appeal appear are void
    because they were rendered after the trial court lost plenary power. See State ex.
    rel Latty v. Owens, 
    907 S.W.2d 484
    , 486 (Tex. 1995) (per curiam) (action taken by
    trial court after plenary power expires is void). When an appeal is taken from a
    void order, an appellate court cannot reach the merits of the appeal but can only
    vacate the void order and dismiss the appeal. See 
    id.
     As directed, appellant filed a
    letter brief addressing the jurisdictional issue.
    In his letter brief, appellant stated that the trial court conducted a hearing on
    the motion to reinstate on March 8, 2021 and timely granted the motion in open
    court. Appellant filed a motion for judgment nunc pro tunc with the trial court on
    April 17, 2023 to correct the “clerical error of the mistaken date.” The trial court
    denied appellant’s motion for judgment nunc pro tunc. In the order, the trial court
    explains that, at the conclusion of the March 8th hearing, it took the matter under
    advisement. The trial court confirmed that the order was, in fact, signed on April
    6, 2021. The reporter’s record of the March 8th hearing confirms the trial court’s
    statements.
    The April 6, 2021 order and the October 28, 2022 dismissal order are void
    because they were signed after the trial court lost plenary power. See Owens, 907
    –2–
    S.W.2d at 486. Accordingly, we vacate the trial court’s April 6, 2021 and October
    28, 2022 orders and dismiss the appeal. See 
    id.
    /Robert D. Burns, III
    ROBERT D. BURNS, III
    230168F.P05                                  CHIEF JUSTICE
    –3–
    S
    Court of Appeals
    Fifth District of Texas at Dallas
    JUDGMENT
    ALFRED COOPER, Appellant                       On Appeal from the County Court at
    Law No. 1, Dallas County, Texas
    No. 05-23-00168-CV          V.                 Trial Court Cause No. CC-20-00276-
    A.
    SHERRY LEE HERNDON SMITH                       Opinion delivered by Chief Justice
    AND ALPHONSO SMITH,                            Burns. Justices Pedersen, III and
    Appellees                                      Goldstein participating.
    In accordance with this Court’s opinion of this date, the trial court’s April 6,
    2021 and October 28, 2022 orders are VACATED and the appeal is DISMISSED.
    It is ORDERED that appellees SHERRY LEE HERNDON SMITH AND
    ALPHONSO SMITH recover their costs of this appeal from appellant ALFRED
    COOPER.
    Judgment entered April 16, 2024
    –4–
    

Document Info

Docket Number: 05-23-00168-CV

Filed Date: 4/16/2024

Precedential Status: Precedential

Modified Date: 4/24/2024