Opinion
No. 04-17-00069-CV
03-27-2017
Nancy ALANIS, Appellant v. BARCLAYS CAPITAL REAL ESTATE INC., formerly d/b/a HomEq Servicing, Appellees
From the 45th Judicial District Court, Bexar County, Texas
Trial Court No. 2011-CI-02839
Honorable Barbara Hanson Nellermoe, Judge Presiding
ORDER
In trial court cause number 2011-CI-02839, Nancy Alanis sued a number of defendants including Barclays Capital Real Estate Inc., formerly d/b/a HomEq Servicing. On May 24, 2016, the trial court severed Alanis's claims against HomEq into a separate cause number, 2016-CI-08807, but Alanis appealed the severance order.
On December 14, 2016, this court reversed the trial court's May 24, 2016 severance order. Alanis v. Wells Fargo Bank Nat'l Ass'n, No. 04-16-00121-CV, 2016 WL 7234047, at *2 (Tex. App.—San Antonio Dec. 14, 2016, no pet.) (mem. op.). By our judgment, we effectively recombined the severed cause, 2016-CI-08807, with the original cause, 2011-CI-02839. See Alanis v. Wells Fargo Bank Nat'l Ass'n, No. 04-16-00121-CV, 2016 WL 7234047, at *2 (Tex. App.—San Antonio Dec. 14, 2016, no pet.) (mem. op.). No postjudgment motions were filed in that appeal. See TEX. R. APP. P. 49.1, 49.7, 49.8.
This court's plenary power over its December 14, 2016 judgment in appeal number 04-16-00121-CV did not expire until February 12, 2017. See TEX. R. APP. P. 19.1(a); Saudi v. Brieven, 176 S.W.3d 108, 113 (Tex. App.—Houston [1st Dist.] 2004, pet. denied). While a court of appeals has plenary power over a cause, a trial court's power to act is very limited. Saudi, 176 S.W.3d at 114 ("[O]nce an appeal has been perfected and the trial court's plenary power to perform certain acts after appeal has expired, the appellate court acquires exclusive plenary jurisdiction over the cause.").
The trial court signed its "Final Summary Judgment" on January 25, 2017, less than sixty days after this court's judgment in appeal number 04-16-00121-CV issued, and while this court appears to have had exclusive plenary jurisdiction over the recombined cause. See id.; see also TEX. R. APP. P. 19.1(a).
Generally, "an appeal may be taken only from a final judgment." Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). But a putatively final judgment issued by a trial court acting without plenary power over the cause is void and effectively a legal nullity. See Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985) (per curiam); Metro. Transit Auth. v. Jackson, 212 S.W.3d 797, 799 (Tex. App.—Houston [1st Dist.] 2006, pet. denied) ("[A] void judgment is a legal nullity . . . ."); Saudi, 176 S.W.3d at 113-14.
A notice of appeal filed to complain of a void judgment does not vest the court of appeals with jurisdiction—other than to determine its own jurisdiction. See Jackson, 212 S.W.3d at 799. In such an instance, "the trial court retains plenary power to dispose of the case by rendering a valid final judgment." Id. (emphasis added).
We ORDER Appellant Nancy Alanis and Appellee Barclays Capital Real Estate Inc. to SHOW CAUSE in writing why (1) the trial court's January 25, 2017 order granting a final summary judgment was not void and (2) this court has jurisdiction in this appeal. See TEX. R. APP. P. 19.1(a); Lehmann, 39 S.W.3d at 195; Browning, 698 S.W.2d at 363; Saudi, 176 S.W.3d at 113-14. We ORDER the parties to file their written responses in this court within TEN DAYS of the date of this order. If the parties fail to timely respond as ordered, this cause will be dismissed. See TEX. R. APP. P. 42.3.
All other appellate deadlines are SUSPENDED pending further order of this court.
/s/_________
Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 27th day of March, 2017.
/s/_________
Keith E. Hottle
Clerk of Court