Alfred Cooper v. Sherry Lee Herndon Smith and Alphonso Smith

• Court: Court of Appeals of Texas
• Decided: April 16, 2024
• Docket: 05-23-00168-CV
• Status: Published

Opinion

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

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