Germania Farm Mutual Insurance Association v. Dwight Schild and Cindy Schild--Appeal from 165th District Court of Harris County

Dismissed and Memorandum Opinion filed May 19, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00527-CV

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GERMANIA FARM MUTUAL INSURANCE ASSOCIATION, Appellant

V.

DWIGHT SCHILD AND CINDY SCHILD, Appellees

On Appeal from the 165th District Court

Harris County, Texas

Trial Court Cause No. 02-30963

M E M O R A N D U M O P I N I O N

Appellant, Germania Farm Mutual Insurance Association, appeals from the trial court s order awarding costs to appellees, Dwight Schild and Cindy Schild. In its first issue, Germania claims this order is void because the trial court signed it after its plenary power had expired. We agree and therefore dismiss this appeal for want of jurisdiction.[1]

The Schilds sued TWV, Inc., claiming personal injuries and property damage from mold contamination and water damage caused by TWV s improper air conditioner installation. Germania, the Schilds homeowner s insurance carrier, paid the Schilds claim and became subrogated to the Schilds claims against TWV. After the Schilds, Germania, and TWV settled, the Schilds attorneys filed a motion for attorneys fees, seeking to be paid from Germania s subrogation recovery. An oral hearing was held on the motion on August 23, 2003, but the trial court never ruled on the motion. On October 27, 2003, the trial court signed an order dismissing the lawsuit for want of prosecution. On March 2, 2004, the Schilds attorneys submitted a proposed order denying the request for attorneys fees but awarding costs. Germania objected to the proposed order, noting that the trial court had lost jurisdiction to rule on the motion, but the trial court signed the proposed order on March 5, 2004. Germania filed a motion for new trial, again complaining that the trial court lacked jurisdiction to sign the order. After the motion was overruled by operation of law, Germania appealed, seeking to have the order declared void.

Rule 165a of the Texas Rules of Civil Procedure governs dismissals for want of prosecution. Unless a verified motion to reinstate is filed, the trial court s plenary jurisdiction expires thirty days after the date on which it signed the final order of dismissal. Tex. R. Civ. P. 165a(3); 3V, Inc. v. JTS Enters., Inc., 40 S.W.3d 533, 538 (Tex. App. Houston [14th Dist.] 2000, no pet.). No motion to reinstate was filed in this case, and therefore the trial court s plenary power expired thirty days after it signed the dismissal order on October 27, 2003. The trial court had no jurisdiction to rule on the attorneys fees motion on March 5, 2004, which was over 120 days after signing the dismissal order. See Harris County Children s Protective Servs. v. Olvera, 971 S.W.2d 172, 175 (Tex. App. Houston [14th Dist.] 1998, pet. denied) ( Once it lost its plenary power over the issue, the trial court no longer had jurisdiction to award attorney s fees. ). Judicial action taken after the court s jurisdiction over a cause has expired is a nullity, and thus the trial court s order on the attorneys fees motion is void. State ex rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995). Because we conclude the trial court had no jurisdiction to sign the order on the attorneys fees motion, we sustain Germania s first issue and dismiss this appeal for lack of jurisdiction. Id.

/s/ Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed May 19, 2005.

Panel consists of Justices Yates, Anderson, and Hudson.

[1] Because we sustain Germania s first issue, we need not address its other two issues, which challenge the trial court s order awarding costs on other grounds.