Annette S. Muecke v. Sue M. Hall--Appeal from 288th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00348-CV
Annette S. MUECKE,
Appellant
v.
Sue M. HALL,
Appellee
From the 288th Judicial District Court, Bexar County, Texas
Trial Court No. 1998-CI-12338
Honorable Michael Peden, Judge Presiding

PER CURIAM

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: July 9, 2003

DISMISSED AS MOOT

This is the second appeal in this case. On May 7, 2003, appellant Annette Muecke ("Muecke") filed a notice of appeal from the trial court's order entered February 26, 2003 dismissing the case of Annette Muecke v. Sue Hall, cause number 1998-CI-12338, and order denying Muecke's motion to reinstate on April 8, 2003. On June 2, 2003, Muecke filed an amended notice of appeal, stating she was also appealing the trial court's order entered May 23, 2003 sustaining appellee Sue Hall's ("Hall") contest of Muecke's affidavit of inability to pay court costs. On June 3, 2003, Muecke filed a motion in this court to order the trial court clerk and court reporter to file the record regarding the affidavit contest. On June 20, 2003, Muecke filed a second motion to order the trial court clerk to file the record in cause number 1998-CI-12338. We deny Muecke's motions and dismiss the appeal.

Background

The procedural history of the litigation between the parties is long and complex. Therefore, we only address those events relevant to this appeal. Muecke sued Hall in 1992 for legal malpractice related to a divorce proceeding. The trial court granted Hall summary judgment in that case on August 23, 1994. Four years later, Muecke filed a bill of review. Hall responded and filed a motion for summary judgment. The motion was granted, and Muecke was denied all requested relief on November 20, 1998 in cause number 1998-CI-12338. She appealed the trial court's decision to this court. We dismissed Muecke's appeal for want of prosecution for failing to file a brief. See Muecke v. Hall, Cause No. 04-98-00989-CV, 1999 WL 1073860 (Tex. App.--San Antonio, Nov. 24, 1999, no pet.) (not designated for publication).

Muecke subsequently attempted to file a petition for review of our decision in the Texas Supreme Court. The Texas Supreme Court granted Muecke two motions for extensions of time to file a petition before it abated the appeal due to Muecke's filing for bankruptcy. The case was reinstated by the Texas Supreme Court in January 2003. Thereafter, Muecke was granted two additional extensions of time to file a petition. The Texas Supreme Court denied a fifth motion for extension of time. Final action on the case was taken by the Texas Supreme Court on April 23, 2003 when it denied Muecke's motion for rehearing of its denial for extension of time. We issued our mandate in accordance with our judgment on Muecke's appeal on May 5, 2003. While the case was pending in the Texas Supreme Court, on February 25, 2003, the 288th Judicial District Court in Bexar County, Texas called the case in cause number 1998-CI-12338 for dismissal. An order dismissing the case was entered by the trial court on February 26, 2003. (1) Muecke subsequently appealed.

On June 9, 2003, Hall filed a motion to dismiss the appeal and to enforce this court's mandate of May 5, 2003. Hall contends, in part, that the trial court's judgment signed on November 20, 1998 in cause number 1998-CI-12338 is "a final judgment from which no further appeal lies." Muecke responds by arguing, in part, that the judgment of the trial court was not a final judgment because it did not dispose of the issues. We agree with Hall.

Analysis

A trial court has plenary power over its judgment for thirty days after it signs the judgment if no motion for new trial, verified motion to reinstate, or motion to modify judgment is filed. See Tex. R. Civ. P. 329b(d); Lane Bank Equip. Co. v. Smith Southern Equip., Inc., 10 S.W.3d 308, 310 (Tex. 2000). If one of these motions is filed, the trial court's plenary power lasts until thirty days after the motion is overruled either by written order or by operation of law, whichever occurs first. Tex. R. Civ. P. 329b(e). As a result, at most, the trial court has the power to vacate, modify, correct, or reform the judgment as late as one hundred and five days after the date the judgment is signed. See L.M. Healthcare, Inc. v. Childs, 929 S.W.2d 442, 444 (Tex. 1996).

A judgment is final when the trial court loses plenary power over the judgment. See Fruehauf Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex. 1993); Crown Constr. Co., Inc. v. Huddleston, 961 S.W.2d 552, 560 (Tex. App.--San Antonio 1997, no writ). Judicial action taken after the trial court's plenary power has expired is void. See State ex. rel Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995).

Here, a final judgment in cause number 1998-CI-12338 was entered on November 20, 1998 when the trial court granted Hall's motion for summary judgment and denied all requested relief in Muecke's bill of review. This court dismissed the appeal from that judgment on November 24, 1999 and issued its mandate on May 5, 2003. Inexplicably, the district court entered an order of dismissal for want of prosecution in the same case on February 26, 2003. By that date, however, the district court's plenary power had long since expired. Accordingly, those portions of the district court's orders setting the case of Annette S. Muecke v. Sue M. Hall, cause number 1998-CI-12338, for dismissal and dismissing the case for want of prosecution in February 2003 are void. See id.; see also Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990) (stating a judgment is void where court rendering judgment has no jurisdiction to render judgment). Muecke cannot appeal that portion of the district court's order of February 26, 2003 which dismissed her lawsuit because the judgment of November 20, 1998 is a final judgment and she has exhausted her appellate rights regarding that judgment. Therefore, no actual controversy exists between the parties.

Accordingly, we dismiss the appeal as moot. See Fed. Deposit Ins. Corp. v. Nueces County, 886 S.W.2d 766, 767 (Tex. 1994) (stating mootness doctrine limits courts to deciding cases in which an actual controversy exists). We grant Hall's motion to dismiss the appeal in part (2) and deny Muecke's motions to order the trial court clerk and court reporter to furnish the record. Costs of appeal are taxed against Muecke.

PER CURIAM

1. The district court's order dismissed nine cases for want of prosecution. Muecke was named as the plaintiff in two of those cases, Annette S. Muecke v. James Woodley, cause number 1998-CI-10218, and Annette S. Muecke v. Sue M. Hall, cause number 1998-CI-12338.

2. In her motion to dismiss, Hall also requests that we "hold the purported appeal frivolous with attendant consequences." We deny this part of Hall's motion.