Law Offices of H. Hudson Henley and Danziger & De Llano v. Dana G. Kirk--Appeal from 3rd District Court of County

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DISMISSAL FORM FOR CIVIL CASES ON ANT'S MOTION /SETTLEMENT NO. 12-02-00049-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

LAW OFFICES OF H. HUDSON HENLEY

AND DANZIGER & DE LLANO,

 
APPEAL FROM THE THIRD

APPELLANTS

 

V.

 
JUDICIAL DISTRICT COURT OF

DANA G. KIRK,

APPELLEE

 
HENDERSON COUNTY, TEXAS
MEMORANDUM OPINION (1)

This is an appeal from an order denying a motion to vacate an arbitration award and from the final judgment on the arbitration award. Appellee has filed a motion to dismiss for lack of jurisdiction, and all other parties to the appeal have been given notice of the filing of this motion. The procedural history of the underlying controversy is extensive, and we therefore recite the pertinent facts.

 
Background

In 1997, Appellants as referring attorneys and Appellee as the lead attorney entered into a fee agreement for a division of all attorney's fees recovered in a lawsuit ("the Abbot lawsuit") filed in Henderson County, Texas. The Abbot lawsuit was subsequently consolidated with two other pending cases involving similar claims by other plaintiffs represented by different lawyers. Eventually the three cases were settled, and a special master was appointed to administer the settlement fund, which included the attorney's fees to be distributed to Appellants and Appellee. The trial court entered its final judgment on December 8, 2000. The judgment bears the captions of all three cases and recites that the cases were consolidated for the purpose "of entry of final judgment upon the settlement of all claims between all of the parties to all of these matters." The judgment further recites that "[t]his is a final judgment." No post-judgment motion or appeal was filed from the final judgment.

At some point, a dispute arose between Appellants and Appellee concerning the division of the attorney's fees. On August 6, 2001, Appellee filed a motion to disburse the remaining attorney's fees that were in dispute and held by the special master. Appellants and Appellee entered into a handwritten agreement to settle their dispute "by binding, non-appealable, arbitration" and filed their agreement with the trial court.

The trial court appointed an arbitrator as requested by Appellants and Appellee, and the fee dispute was submitted to arbitration. On October 26, 2001, the arbitrator filed his award. On November 1, 2001, Appellants filed a motion to vacate the arbitrator's award, and Appellee moved for judgment on the award. At the hearing on the pending motions, Appellants asked to sever the fee dispute, and the judge expressed reservations about his jurisdiction. The trial court denied Appellants' motion to vacate and requested that the arbitrator submit an amended award specifying the amounts involved.

On December 11, 2001, Appellants filed a notice of appeal. The arbitrator filed his amended award, and on January 17, 2002, the trial court signed a "Final Judgment on Arbitration Award and Order of Severance." The judgment ordered the distribution of the remaining funds in question and recited that "this Final Judgment on Arbitration Award shall be severed from the above numbered and styled causes...." The consolidated cases were named in the caption of the judgment. All pleadings and other documents filed after December 8, 2000, except the parties' agreement to arbitrate, bore the caption of the Abbot lawsuit or the captions of the consolidated cases. The arbitration agreement did not refer to any case.

On February 5, 2002, Appellants filed an amended notice of appeal, but changed the caption to "Cause No. 97A-256A, Law Office of H. Hudson Henley and Danziger & De Llano v. Dana G. Kirk." By its amended notice, Appellants purport to appeal the trial court's denial of their motion to vacate the arbitration award as well as the final judgment on the award. This amended notice is the first time the names of Appellants and Appellee appeared in any caption on any pleading. The record does not indicate that any of the parties to this appeal were ever named as parties in the consolidated cases or that Appellee was ever served with citation and a petition for any claim Appellants assert against Appellee in this appeal.

 
Analysis

A trial court has plenary power to grant a new trial or to vacate, modify, correct, or reform a judgment within thirty days after the judgment is signed. Tex. R. Civ. P. 329b(d). Thus, the trial court lost its plenary jurisdiction in the consolidated cases on January 7, 2001.

Appellants filed their motion to vacate the arbitration award on November 1, 2001, and the trial court entered its final judgment on the arbitration award on January 17, 2002. Both dates are after the trial court's plenary jurisdiction expired. Consequently, the trial court had no jurisdiction to rule on the motion to vacate the arbitration award or to enter the final judgment on the arbitration award and sever the fee dispute. See Brown v. Fullenweider, 52 S.W.3d 169, 171 (Tex. 2001).

Although Appellants and Appellee continued to file pleadings using the captions for the Abbot lawsuit and the consolidated cases after the trial court's plenary jurisdiction expired, those actions are insufficient to confer jurisdiction on the trial court. Jurisdiction cannot be conferred by waiver or agreement. See Brown v. Fullenweider, 52 S.W.3d at 170-71; Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76. Accordingly, Appellee's motion is granted, and this appeal is dismissed for lack of jurisdiction.

 

Opinion delivered June 18, 2002.

Panel consisted of Worthen, J., and Griffith, J.

 
(DO NOT PUBLISH)

1. See Tex. R. App. P. 47.1.