Summary
holding that court lacked jurisdiction over restricted appeal because "[e]ven void orders must be timely appealed"
Summary of this case from Tafoya v. Green Tree Servicing LLCOpinion
No. 05-05-00725-CV
Opinion Filed September 13, 2005.
On Appeal from the County Court at Law No. 3, Dallas County, Texas, Trial Court Cause No. CC-02-14118-C.
Dismiss.
Before Justices WRIGHT, BRIDGES, and FITZGERALD.
MEMORANDUM OPINION
Jeffrey S. Standifer appeals the September 20, 2004 order realigning the parties and amending the style of the case. By letter dated July 13, 2005, we questioned our jurisdiction and directed Standifer to file a letter brief explaining how this Court has jurisdiction over this appeal. Standifer responded, stating he was appealing by restricted appeal, and the Court had jurisdiction under Texas Rule of Appellate Procedure 30.
A review of the record shows that after being involved in an automobile accident, Yolanda Cepeda, acting individually and as next friend for Brianna Cepeda and Dominic Cepeda, sued Keith Wayne Davis and Keisha Nichole Elsein in county court for negligence. The parties reached a mediated settlement agreement, and on June 21, 2004, the trial court signed a judgment disposing of all the issues and parties in the case.
In the meantime, Jeffery Standifer filed claims in justice court against Cepeda and Cepeda's attorney, Tom Carse, seeking payment for medical services Standifer rendered after the automobile accident. Apparently unknown to Standifer, the county court judge signed an order on September 1, 2004, removing the two small claims cases from justice court and consolidating them into Cepeda's county court suit against Davis and Else. On September 20, 2004, the trial court signed an order realigning the parties and amending the style of the case. On March 30, 2005, Standifer filed his "Notice of Restricted Appeal" attempting to "appeal the September 20, 2004 order to involuntarily intervene him in the above case without notice."
Michael Anthony Emma, P.C. is listed on Standifer's docketing statement as an appellee and appears in Cepeda's motion to realign the parties. However, there is nothing in the record before us explaining why he is a party to this appeal or whether he was named in a pleading below.
The September 20, 2004 order realigns the parties and amends the style of the case. The September 1, 2004 order removed Standifer's small claims from justice court and consolidated them into the Cepeda's county court case against Davis and Else. Thus, we interpret Standifer's notice of appeal as complaining of both orders.
A trial court retains jurisdiction over a case for thirty days after it signs a final judgment or order. Tex. R. Civ. P. 326b(d). After the thirty days expires, the trial court loses its plenary power and lacks jurisdiction to act in the matter. See Check v. Mitchell, 758 S.W.2d 755, 756 (Tex. 1988). Judicial action taken after the trial court's plenary power has expired is void. See State ex. rel Letty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995). An order or judgment is final for purposes of appeal when it actually disposes of every pending claim and party or clearly and unequivocally states that it finally disposes of all claims and all parties. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001). In this case, the county court judge court signed a judgment disposing of all pending claims and parties in the case on June 24, 2004. Because no motion for new trial was filed, the trial court's plenary power expired on July 24, 2004. Nevertheless, the county court judge signed two orders after this date. Both orders are void. The question is whether this court has jurisdiction over this restricted appeal complaining of the void orders. We conclude we do not.
Even void orders must be timely appealed. See Kenseth v. Dallas County, 126 S.W.3d 584, 596-97 (Tex.App.-Dallas 2004, pet. denied) (rejecting parties' argument that void orders can be attacked at any time, including time that would otherwise be too late under rules of appellate procedure). To be timely, a notice of restricted appeal must be filed within six months after the date the final judgment is rendered. Tex. Civ. Prac. Rem. Code Ann. § 51.013 (Vernon 1997). The complained-of orders were signed on September 1, 2004 and September 20, 2004. Thus, Standifer's notice of restricted appeal was due on or before March 20, 2004. See Linton v. Smith, 154 S.W.2d 643, 644-45 (Tex. 1941). Because Standifer did not file his notice of appeal until March 30, 2004, it is not timely. Consequently, this Court lacks jurisdiction over this restricted appeal. See id.
The civil practices and remedies code refers to a "writ of error" rather than a "restricted appeal." The writ of error procedure is now the restricted appeal procedure. See Alexander v. Lynda's Boutique, 134 S.W.3d 845, 849 (Tex.
Further, the complained-of orders do not resolve the issues between Standifer, Cepeda, and Carse. Thus, neither is a final, appealable order. See Lehmann, 39 S.W.3d at 205. As a result, Standifer may not challenge either order by restricted appeal. See Tex. Civ. Prac. Rem. Code Ann. § 51.012 (Vernon 1997) (in a civil case in which the judgment or amount in controversy exceeds $100, person may take an appeal or writ of error to the court of appeals from a final judgment of the district or county court); Federated Mut. Ins. Co. v. Davenport, 85 S.W.3d 837, 838 (Tex.App.-Waco 2002, no pet.) (dismissing restricted appeal of an interlocutory order for want of jurisdiction); Dispensa v. Univ. State Bank, 951 S.W.2d 797, 799 (Tex.App.-Texarkana 1997, pet. denied) (same).
Because Standifer's notice of restricted appeal was not timely, and because the law does not provide for judicial review of an interlocutory order by restricted appeal, the Court, on its own motion, dismisses this appeal for want of jurisdiction. See Tex.R.App.P. 42.3(a).