Michael Palma v. Sterling Association Services, Inc

• Court: Court of Appeals of Texas
• Decided: August 29, 2024
• Docket: 01-23-00805-CV
• Status: Published

Opinion

Opinion issued August 29, 2024

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-23-00805-CV ——————————— MICHAEL PALMA, Appellant V. STERLING ASSOCIATION SERVICES, INC, Appellee

On Appeal from the 113th District Court Harris County, Texas Trial Court Case No. 2022-60235

MEMORANDUM OPINION

This appeal arises from a dispute between Appellant Michael Palma and

Appellee Sterling Association Services, Inc. over Sterling’s authority to enforce

covenants and restrictions against Palma’s property. After the trial court dismissed

Palma’s claims against Sterling with prejudice, Palma filed a motion to reinstate which the trial court construed as a motion for new trial. Although the trial court

orally granted the motion, no written order was issued. In response to various

motions Palma filed after the hearing on his motion for new trial, Sterling filed an

objection to jurisdiction in which it argued that the trial court’s plenary power had

expired. After a hearing on Palma’s motions, the trial court issued an order

sustaining Sterling’s objection to jurisdiction. This appeal followed.

We dismiss Palma’s appeal for lack of jurisdiction.

Background

Palma, acting pro se, sued Sterling for tortious interference with a contract

and invasion of privacy in relation to a property, which Palma purports to own,

located in the Candlelight Oaks Village Subdivision. Sterling is the management

company for Candlelight Oaks Village Maintenance Fund, Inc., the homeowners’

association for the property. As Palma has done in prior lawsuits against Candlelight

Oaks and its management companies, he alleged that the homeowners’ association’s

imposition of covenants, restrictions, and subsequent fees for violating them

unconstitutionally interfered with the 1848 patent by which his predecessor-in-title

acquired the property from the State of Texas.1 He further argued that compliance

1 Palma has filed several prior lawsuits challenging the collection of property taxes and homeowners’ association fees. See, e.g., Palma v. Harris Cnty. Appraisal Dist., No. 21-20402, 2021 WL 8566012, at *1 (5th Cir. Dec. 6, 2021) (dismissing appeal as frivolous); Palma v. Texas, No. 4:21-CV-1210, 2021 WL 5040415, at *1–3 (S.D. Tex. Oct. 22, 2021), adopted, 2021 WL 5043094 (dismissing for lack of subject-

2 letters from the association constituted harassment and he sought non-economic and

exemplary damages as well as declaratory and injunctive relief.

Sterling filed a Rule 91a motion to dismiss Palma’s claims which Sterling

argues have no basis in law or fact.2 On April 6, 2023, the trial court granted

matter jurisdiction); Palma v. Texas, No. H-18-CV-4561, 2019 WL 2524933, at *1– 2 (S.D. Tex. Apr. 3, 2019), adopted, 2019 WL 2524921 (dismissing for failure to prosecute); Palma v. Luker, No. H-18-0335, 2019 WL 1330332, at *1–4 (S.D. Tex. March 25, 2019) (dismissing for lack of subject matter jurisdiction); Palma v. Genesis Cmty. Mgmt., Inc., No. H-18-124, 2018 WL 2289341, at *1 (S.D. Tex. May 18, 2018) (dismissing Palma’s suit with prejudice); In re Palma, No. 01-19-00471- CV, 2019 WL 3293691, at *1 (Tex. App.—Houston [1st Dist.] July 23, 2019, orig. proceeding) (mem. op.); Palma v. Harris Cnty. Appraisal Review Bd., No. 01-17- 00705-CV, 2018 WL 3355052, at *1–2 (Tex. App.—Houston [1st Dist.] July 10, 2018, pet. denied) (mem. op.) (affirming trial court’s order granting appraisal review board’s plea to jurisdiction); Palma v. Harris Cnty. Appraisal Dist., No. 01-17- 00502-CV, 2018 WL 1473792, at *1–2 (Tex. App.—Houston [1st Dist.] Mar. 27, 2018, pet. denied) (mem. op.) (affirming trial court’s order granting appraisal district’s motion for summary judgment); Palma v. Houston Indep. Sch. Dist., No. 01-07-00898-CV, 2013 WL 2146709, at *4 (Tex. App.—Houston [1st Dist.] May 16, 2013, no pet.) (mem. op.) (affirming trial court’s judgment awarding school district overdue property taxes); In re Palma, No. 01-12-00631-CV, 2012 WL 3135672, at *1 (Tex. App.—Houston [1st Dist.] Aug. 2, 2012, orig. proceeding); In re Palma, No. 14-05-01221-CV, 2005 WL 3435256, at *1 (Tex. App.—Houston [14th Dist.] Dec. 15, 2005, orig. proceeding) (mem. op.).

The Fourteenth Court of Appeals recently affirmed the trial court’s dismissal of the exact same claims as Palma raised against Sterling in the present case. Palma v. Gen. Land Office of Tex., No. 14-22-00350-CV, 2023 WL 5217768, at *1–*2 (Tex. App.—Houston [14th Dist.] Aug. 15, 2023, pet. denied) (mem. op.) (affirming trial court’s dismissal of Palma’s claims that charging homeowners’ association fees violated his constitutional rights and tortiously interfered with his property rights). 2 Under Texas Rule of Civil Procedure Rule 91a.1, “a party may move to dismiss a cause of action on the grounds that it has no basis in law or fact.” TEX. R. CIV. P. 91a.1.

3 Sterling’s motion, dismissed Palma’s claims with prejudice, and ordered Palma to

pay Sterling’s attorney’s fees.

Palma filed a timely post-judgment “Motion to Reinstate” and the trial court

held a hearing on the motion on May 9, 2023. Based on the contents of the motion,

and because the case had not been dismissed for want of prosecution, the trial court

construed Palma’s motion to reinstate as a motion for new trial. Compare TEX. R.

CIV. P. 165a (allowing motions to reinstate following dismissal for want of

prosecution), with TEX. R. CIV. P. 320, 329b (addressing post-judgment motions for

new trial). Although the trial court orally stated during the hearing that it would

grant the motion for new trial, the trial court never issued a written, signed order

granting Palma’s motion.

Three months later, on August 8, 2023, Palma filed a motion for traditional

and no evidence summary judgment and a motion to compel discovery. In response

to Palma’s motions, Sterling filed an objection to the trial court’s jurisdiction in

which it argued that, because the trial court had not signed an order granting Palma’s

motion for new trial, the motion had been overruled by operation of law on June 20,

2023, and the trial court had lost plenary power on July 20, 2023. Nonetheless,

Palma continued filing motions after this date. On September 22, 2023, the trial

court held a hearing on Palma’s motions, and after hearing the parties’ arguments,

4 the court signed an order sustaining Sterling’s objection to the trial court’s

jurisdiction.

On October 2, 2023, Palma filed a notice of appeal.

Trial Court’s Jurisdiction

Sterling filed a motion to dismiss this appeal for lack of jurisdiction. It argues

this Court lacks jurisdiction over Palma’s appeal because Palma failed to file a timely

notice of appeal from the trial court’s final judgment disposing of his claims and the

order sustaining Sterling’s objection to jurisdiction is not an appealable final order

or an appealable interlocutory appeal.

A final judgment or other appealable interlocutory order is a prerequisite to

appellate jurisdiction. Jack M. Sanders Family Ltd. P’ship v. Roger T. Fridholm

Revocable Living Tr., 434 S.W.3d 236, 240 (Tex. App.—Houston [1st Dist.] 2014,

no pet.). So is the timely filing of a notice of appeal. See TEX. R. APP. P. 25.1(c);

Brashear v. Victoria Gardens of McKinney, L.L.C., 302 S.W.3d 542, 545–46 (Tex.

App.—Dallas 2009, no pet.) (stating timely filing of notice of appeal is jurisdictional

prerequisite). If a party fails to file a timely notice of appeal, we lack jurisdiction to

address the merits of that party’s appeal and must dismiss the appeal. See TEX. R.

APP. P. 25.1(b); see also In re K.L.L., 506 S.W.3d 558, 560 (Tex. App.—Houston

[1st Dist.] 2016, no pet.) (stating without timely notice of appeal, appellate court

5 lacks jurisdiction over appeal). Because this Court’s jurisdiction is a threshold issue,

we must address it first. Jack M. Sanders Family Ltd. P’ship, 434 S.W.3d at 240.

A. Standard of Review & Applicable Law

Generally, appellate courts only have jurisdiction over appeals from final

judgments. See Bonsmara Nat. Beef Co., LLC v. Hart of Tex. Cattle Feeders, LLC,

603 S.W.3d 385, 390 (Tex. 2020). A judgment issued without a conventional trial

is final for purposes of appeal only if it (1) actually disposes of all claims and parties

before the court, regardless of its language, or (2) states with unmistakable clarity

that it is a final judgment as to all claims and all parties. Lehmann v. Har-Con Corp.,

39 S.W.3d 191, 192–93 (Tex. 2001); Patel v. Nations Renovations, LLC, 661 S.W.3d

151, 154 (Tex. 2023). Whether a court has jurisdiction is a question of law, which

we review de novo. Bonsmara Nat. Beef Co., 603 S.W.3d at 390.

Any party “seek[ing] to alter [a] trial court’s judgment” must timely file a

notice of appeal. TEX. R. APP. P. 25.1(c). A notice of appeal is generally due within

thirty days after the trial court signs its final judgment. See TEX. R. APP. P. 26.1.

The deadline to file a notice of appeal is extended to ninety days after the judgment

is signed if, within thirty days after the judgment is signed, a party timely files a

motion for new trial, motion to modify the judgment, motion to reinstate, or, under

certain circumstances, a request for findings of fact and conclusions of law. See

TEX. R. APP. P. 26.1(a); see also TEX. R. CIV. P. 329b. The time to file a notice of

6 appeal may also be extended if, within fifteen days after the deadline to file the notice

of appeal, a party files a notice of appeal and a motion for extension of time to file a

notice of appeal compliant with Texas Rule of Appellate Procedure 10.5(b). See

TEX. R. APP. P. 10.5(b), 26.3. A trial court retains jurisdiction over a case for thirty

days after it signs a final judgment or order. TEX. R. CIV. P. 329b(d). After thirty

days, the trial court loses plenary power and lacks jurisdiction to act in the matter.

Martin v. Tex. Dep’t of Family & Protective Servs., 176 S.W.3d 390, 392 (Tex.

App.—Houston [1st Dist.] 2004, no pet.). A court’s plenary power is extended to

105 days after a final judgment is signed when a party files a timely post-judgment

motion, such as a motion for new trial. See TEX. R. CIV. P. 329b(c). If a motion for

new trial is not determined by a written, signed order within seventy-five days after

the judgment was signed, it is overruled by operation of law. See TEX. R. CIV. P.

329b(c), (e); see also Cecil v. Smith, 804 S.W.2d 509, 511 (Tex. 1991).

Judicial action taken after the trial court’s plenary power expires is void. See

State ex. rel Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995); see also Mapco, Inc.

v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990) (defining void judgment as one

rendered when court has no jurisdiction over parties or subject matter, no jurisdiction

to render judgment, or no capacity to act as court). Although a party need not appeal

a void order, if an appeal is taken, the appellate court should declare void any orders

the trial court signed after it lost its plenary power. State ex. rel Latty, 907 S.W.2d

7 at 486; see also Martin, 176 S.W.3d at 393–94 (holding that trial court’s order

granting plea to jurisdiction was void because order was issued after expiration of

trial court’s plenary power, declaring order void, and dismissing appeal for lack of

jurisdiction).

B. Analysis

The trial court’s April 6, 2023 order granting Sterling’s 91a motion to dismiss

and dismissing Palma’s claims with prejudice disposed of all parties and all claims.

It is thus a final judgment. See Bella Palma, LLC v. Young, 601 S.W.3d 799, 801

(Tex. 2020) (“[A] judgment is final either if ‘it actually disposes of every pending

claim and party’ or ‘it clearly and unequivocally states that it finally disposes of all

parties.’”). Palma’s timely filing of his motion to reinstate, which the trial court

construed as a motion for new trial, extended Palma’s deadline to file his notice of

appeal to ninety days after the final judgment was signed. See TEX. R. APP. P.

26.1(a); see also TEX. R. CIV. P. 329b. His notice of appeal was thus due on July 5,

2023—ninety days after the trial court signed its final judgment. See TEX. R. APP.

P. 26.1(a) (stating that notice of appeal must be filed within ninety days after

judgment is signed if any party timely files motion for new trial). Palma, however,

did not file his notice of appeal until October 2, 2023. We thus lack jurisdiction over

any appeal of the trial court’s April 6, 2023 final judgment. See Wagner & Brown

8 Ltd. v. Horwood, 58 SW.3d 732, 737–38 (Tex. 2001); Brashear, 302 S.W.3d at 545–

46 (stating timely filing of notice of appeal is jurisdictional prerequisite).

To the extent Palma attempts to appeal from the trial court’s September 22,

2023 order sustaining Sterling’s objection to the jurisdiction, we equally lack

jurisdiction over that appeal. The trial court’s September 22 order is not a final

appealable order. We further note that even though the trial court orally granted

Palma’s timely motion for new trial, the court did not issue a written order granting

the motion. Consequently, Palma’s motion for new trial was overruled by operation

of law on June 20, 2023, seventy-five days after the April 6, 2023 final judgment

was signed. See TEX. R. CIV. P. 329b(c), (e); see also In re Bates, 429 S.W.3d 47,

51 (Tex. App.—Houston [1st Dist.] 2014, orig. proceeding) (citing Faulkner v.

Culver, 851 S.W.2d 187, 188 (Tex. 1993, orig. proceeding) (per curiam)) (“Courts

have also held that neither a trial court’s oral pronouncement granting a motion for

new trial, nor a docket entry indicating that such a motion was granted, nor a written

order setting the case for trial are permissible substitutes for a signed, written order

adjudicating the merits of the motion for new trial as required by Rule 329b.”).

The trial court lost plenary power on July 20, 2023, thirty days after Palma’s

motion for new trial was overruled by operation of law. TEX. R. CIV. P. 329b(e); see

also Estate of Townes v. Wood, 934 S.W.2d 806, 806–07 (Tex. App.—Houston [1st

Dist.] 1996, orig. proceeding) (stating it is undisputed that, absent written order

9 granting motion for new trial, expiration of 329b deadlines end case). The trial

court’s order sustaining Sterling’s objection to the jurisdiction was issued on

September 22, 2023, after the trial court’s plenary power expired. We thus declare

the order void and dismiss the appeal for lack of jurisdiction. See State ex. rel

Latty, 907 S.W.2d at 486 (stating if appeal taken from order issued after expiration

of trial court’s plenary power, appellate court should declare order void and dismiss

appeal for lack of jurisdiction); see also In re T.G., 68 S.W.3d 171, 177 (Tex. App.—

Houston [1st Dist.] 2022, pet. denied) (“Although the appellate court may declare

post-plenary-power orders void, appeals from void orders must be dismissed.”).

Conclusion

We vacate the trial court’s September 22, 2023 order sustaining Sterling’s

objection to jurisdiction and dismiss Palma’s appeal for lack of jurisdiction.

Veronica Rivas-Molloy Justice

Panel consists of Justices Hightower, Rivas-Molloy, and Farris.