Opinion
No. 04-13-00418-CV
2013-10-04
Javier MORA, Appellant v. Anna G. MORA, Appellee
From the 224th Judicial District Court, Bexar County, Texas
Trial Court No. 2001-CI-00776
Honorable John D. Gabriel, Jr., Judge Presiding
ORDER
On May 31, 2013, the trial court granted a motion for judgment nunc pro tunc, ostensibly correcting a final decree of divorce signed August 17, 2010. Thereafter, on June 28, 2013, appellant Javier Mora filed a "Motion to Vacate, Set Aside, Correct, Reform, or 'Modify' Order on Motion for Judgment Nunc Pro Tunc." On that same day, appellant filed a notice of appeal, stating he desired to appeal from the May 31, 2013 order granting the motion for judgment nunc pro tunc.
Pursuant to Rule 329b of the Texas Rules of Civil Procedure, the trial court had plenary power to grant appellant's motion until thirty days after the motion was overruled by written and signed order or by operation of law. See TEX. R. CIV. P. 329b(e). A motion such as that filed by appellant is overruled by operation of law seventy five-days after the judgment is signed if no written order on the motion is signed within that time period. Id. R. 329b(c). There was no ruling on the motion by August 14, 2013, seventy-five days after the judgment was signed. Accordingly, the trial court had plenary power to grant the motion until September 13, 2013, thirty days after the date the motion was overruled by operation of law. On September 12, 2013, the trial court signed an order granting appellant's "Motion to Vacate, Set Aside, Correct, Reform, or "Modify" Order on Motion for Judgment Nunc Pro Tunc," declaring the order of May 31, 2013 "void and of no effect." In other words, the September 12, 2013 order set aside the May 31, 2013 order from which appellant seeks to appeal.
Accordingly, it appears that appellant has obtained the relief he sought in the trial court, and the order upon which the notice of appeal is based has been set aside. We therefore ORDER appellant Javier Mora to show cause in writing on or before October 14, 2013 why this court should not dismiss the appeal as moot. If a supplemental clerk's record is necessary to establish that this appeal is not moot, appellant is ordered to request a supplemental clerk's record and notify this court that such record has been requested.
We order the clerk of this court to serve a copy of this order on all counsel.
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Marialyn Barnard, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 4th day of October, 2013.
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Keith E. Hottle
Clerk of Court