John E. Rodarte v. Bexar County, Texas and Sheriff Ralph Lopez

• Court: Court of Appeals of Texas
• Decided: March 13, 2013
• Docket: 04-12-00211-CV
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-12-00211-CV

John E. RODARTE Sr., Appellant

v.

BEXAR COUNTY, Texas; Ralph Lopez, Sheriff; Bexar County Adult Detention Center, Appellees

From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 2005-CI-18884 Honorable Fred Shannon, Judge Presiding

Opinion by: Luz Elena D. Chapa, Justice

Sitting: Karen Angelini, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice

Delivered and Filed: March 13, 2013

DISMISSED FOR LACK OF JURISDICTION

John E. Rodarte, Sr. filed the underlying suit in 2005. In December 2007, the defendants

filed a plea to the jurisdiction, which the Honorable Karen Pozza heard in January 2008. On

January 10, 2008, the trial court signed an order granting the plea to the jurisdiction and ordering

that “each and every of Plaintiff’s claims and causes of action against Defendants are dismissed.”

The January 10, 2008 order disposed of all pending claims and parties. For reasons not apparent

in the record, on February 13, 2008, the trial court signed an order withdrawing the January 10

order and denying the plea to the jurisdiction. 04-12-00211-CV

Proceedings in the case continued for several years and it was set for a December 5, 2011

trial. On that day, before the case was called for trial, the Honorable Fred Shannon signed an

order dismissing the case with prejudice. The order recited Judge Shannon had reviewed the case

file and concluded: (1) the January 10, 2008 order finally disposed of the case and subsequent

proceedings were void; (2) the defendants’ plea to the jurisdiction should have been and thereby

was granted; and (3) the defendants’ no evidence motion for summary judgment, previously

denied by the court, should have been and thereby was granted. On December 13, 2012, Rodarte

filed a motion to reinstate the case, and on April 9, 2012, Rodarte filed a notice of appeal.

A judgment that disposes of all parties and issues in a case is final and appealable.

Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001). The trial court retains plenary power to

grant a new trial or to vacate, modify, correct, or reform the judgment for thirty days after the

judgment is signed. TEX. R. CIV. P. 329b(d). If a timely motion for new trial or motion to modify,

correct, or reform the judgment is filed, the trial court’s plenary power is extended until thirty

days after all such timely-filed motions are overruled. TEX. R. CIV. P. 329b(e), (g). An order

signed after the court loses plenary power is void. In re Brookshire Grocery Co., 250 S.W.3d 66,

72 (Tex. 2008); In re J.P.L., 359 S.W.3d 695, 705 (Tex. App.—San Antonio 2011, pet. denied).

The January 10, 2008 order granting the defendants’ plea to the jurisdiction was final and

appealable. The trial court retained plenary power over that order until February 11, 2008, unless

a timely motion extending plenary power was filed. Rodarte asserts in his brief that he filed a

motion to reinstate dated January 21, 2008, extending the trial court’s plenary power. However,

the record does not contain a motion to reinstate, motion for new trial, or motion to modify,

correct, or reform the judgment dated or filed on or before February 11, 2008. The docket sheet

does not reflect any such motion was filed. The trial court therefore lost plenary power over the

January 10, 2008 judgment, and all subsequent proceedings, including the February 13, 2008 -2- 04-12-00211-CV

order, were void. See TEX. R. CIV. P. 329b; Brookshire, 250 S.W.3d at 72; State ex rel. Latty v.

Owens, 907 S.W.2d 484, 486 (Tex. 1995); J.P.L., 359 S.W.3d at 705. Because Rodarte did not

timely appeal the January 10, 2008 final judgment, we lack jurisdiction over this appeal. 1

We therefore dismiss this appeal for lack of jurisdiction.

Luz Elena D. Chapa, Justice

1 We note that Rodarte’s attempt to appeal the December 5, 2012 order was also untimely. Rodarte timely filed a motion to reinstate on December 12, 2012. A notice of appeal was therefore due March 5, 2012. See Tex. R. App. P. 26.1(a). However, Rodarte did not file a notice of appeal until April 9, 2012. Although the notice of appeal purports to be a restricted appeal, Rodarte was not entitled to file a restricted appeal because he timely filed a post-judgment motion. See Tex. R. App. P. 30.

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