Timothy Gereb v. Sandrea Kuhlman

• Court: Court of Appeals of Texas
• Decided: December 7, 2011
• Docket: 04-11-00428-CV
• Status: Published

Opinion

MEMORANDUM OPINION No. 04-11-00428-CV

Timothy GEREB, Appellant

v.

Sandrea KUHLMAN, Appellee

From the 408th Judicial District Court, Bexar County, Texas Trial Court No. 2009-CI-06534 Honorable David A. Berchelmann, Jr., Judge Presiding

PER CURIAM

Sitting: Karen Angelini, Justice Sandee Bryan Marion, Justice Phylis J. Speedlin, Justice

Delivered and Filed: December 7, 2011

DISMISSED FOR LACK OF JURISDICTION

On July 1, 2011, appellee filed a motion to dismiss this appeal, claiming that final

judgment was signed on March 17, 2011, and that appellant’s notice of appeal, filed on June 22,

2011, was untimely. On July 27, 2011, appellant filed a response to the motion to dismiss. We

held the motion in abeyance pending filing of the clerk’s record. After the trial court clerk filed a

notification of late clerk’s record, stating that appellant had failed to pay or make arrangements

to pay the fee for preparing the record and that appellant was not entitled to appeal without 04-11-00428-CV

paying the fee, we ordered appellant to provide written proof that either (1) the clerk’s fee had

been paid or arrangements had been made to pay the clerk’s fees, or (2) appellant was entitled to

appeal without paying the clerk’s fee. On August 3, 2011, appellant filed an affidavit of

indigence in this court. Therefore, on August 17, 2011, we abated this appeal to the trial court.

See TEX. R. APP. P. 20.1.

A limited clerk’s record has now been filed in this case. We, therefore, REINSTATE this

appeal on the docket of this court. The limited clerk’s record filed shows that a default judgment

was signed by the trial court on March 17, 2011. Five days later, on March 22, 2011, the trial

court erroneously dismissed the case for want of prosecution. Therefore, within its plenary

power, the trial court modified the March 17, 2011, judgment by signing the order dismissing the

case for want of prosecution. See TEX. R. CIV. P. 329b(d) (“The trial court, regardless of whether

an appeal has been perfected, has plenary power to grant a new trial or to vacate, modify, correct,

or reform the judgment within thirty days after the judgment is signed.”). Thus, the order of

dismissal vacated and superseded the March 17, 2011, judgment. See SLT Dealer Group, Ltd. v.

AmeriCredit Fin. Servs., Inc., 336 S.W.3d 822, 832 (Tex. App.—Houston [1st Dist.] 2011, no

pet. h.).

After the order of dismissal was signed, appellee, plaintiff below, filed a motion to

reinstate the case, arguing to the trial court that because a judgment had been signed on March

17, 2001, the trial court had erroneously dismissed the case for want of prosecution. On April 5,

2011, still within its plenary power, the trial court ordered the following:

On the below date, this Court heard the Motion of Sandrea Kuhlman, Plaintiff in this cause, to Reinstate this case since judgment was entered on March 17, 2011, prior to dismissal by this Court on March 22, 2011. This Court heard and considered the Motion and is of the opinion that this case should be reinstated.

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THEREFORE, IT IS ORDERED that this case is hereby reinstated.

Thus, the trial court reinstated the case on its docket. However, the trial court did not reinstate its

previous judgment of March 17, 2011. See In re Baylor Med. Ctr., 280 S.W.3d 227, 231 (Tex.

2008) (orig. proceeding) (explaining that trial court can reinstate prior judgment and that

appellate deadlines restart from the date the trial court reinstates prior judgment). Because the

March 17, 2011, judgment was not reinstated, there is no final judgment in this case. See Pringle

v. Moon, 158 S.W.3d 607, 610 (Tex. App.—Fort Worth 2005, no pet.) (“When a judgment has

been rendered and later set aside or vacated, the matter stands precisely as if there had been no

judgment.”). And, because there is no final judgment, we are without jurisdiction over this

appeal.

We therefore grant appellee’s motion to dismiss to the extent that we dismiss this appeal

for lack of jurisdiction.

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