Opinion
No. 05-18-00163-CV No. 05-18-00164-CV
04-18-2018
IN THE INTEREST OF M.A.A., A CHILD
On Appeal from the 382nd Judicial District Court Rockwall County, Texas
Trial Court Cause Nos. 1-09-843 and 1-15-76
ORDER
Before the Court are two motions filed by Sherry Rhodes. In the first motion, Rhodes seeks review of the trial court's February 21, 2018 orders of dismissal with prejudice in each of these causes, leave for her daughter Breena Rhodes to proceed with the appeals and without payment of costs, and partial dismissal of the appeals in light of the trial court's February 21st orders. In the second motion, Rhodes seeks consolidation of the appeals. A summary of relevant facts follows.
The two appeals were filed February 13, 2018 by Rhodes, appearing pro se, on behalf of herself and her daughter. The single notice of appeal recites the orders being challenged are the trial court's January 29, 2018 order in trial court cause number 1-09-843 (appellate cause number 05-18-00163-CV) and the "open-court permitted interlocutory ruling [of] January 24, 2018" and "order dated January 24, 2018" in trial court cause number 1-15-76 (appellate cause number 05-18-00164-CV).
The limited clerk's record filed at our request so we could determine our jurisdiction contains the January 29th order and one of the live pleadings in cause number 1-09-843. The live pleading is a motion filed by Rhodes to revoke both a mediated settlement agreement and the trial court's January 24, 2010 final order based on "breach of contract/agreement" and "failure to perform, extortion and fraud upon the court." The January 29th order dismissed all claims in that motion as well as all claims raised in a second motion filed by Rhodes seeking to set aside the mediated settlement agreement and final order "based on fraud, conspiracy, undue influence, coercion and crime upon the court."
The record also contains what appears to be the January 24th "interlocutory ruling" in cause number 1-15-76, a summary judgment in favor of two of at least six defendants in a bill of review proceeding filed by Rhodes. The record does not reflect a separate "order dated January 24[th]" in that cause, but contains an order signed January 29, 2018 dismissing the bill of review proceeding in its entirety.
On February 23, 2018, the trial court filed in this Court a copy of the February 21st orders Rhodes now seeks to have reviewed. Those orders each recite that Rhodes had agreed to withdraw these appeals.
In light of the February 21st orders, we informed Rhodes by letters dated February 27, 2018 that unless she notified the Court otherwise, we would assume she was no longer pursuing the appeals and would dismiss them without further notice. Rhodes responded by filing the pending motions.
Texas Rule of Civil Procedure 301 provides, in part, that "[o]nly one final judgment shall be rendered in any cause[.]" TEX. R. CIV. P. 301. When, as here, the trial court replaces an existing judgment during its plenary power, the second judgment is the operative judgment, and an appeal from the first judgment is treated as from the second judgment. See TEX. R. APP. P. 27.3; Check v. Mitchell, 758 S.W.2d 755, 756 (Tex. 1988) (per curiam); SLT Dealer Grp., Ltd. v. AmeriCredit Fin. Serv., Inc., 336 S.W.3d 822, 832 (Tex. App.—Houston [1st Dist.] 2011, no pet.).
Based on the applicable law, we DENY as moot Rhodes's first motion to the extent it seeks review of the trial court's February 21st orders and partial dismissal of the appeals. We further DENY the first motion to the extent it seeks leave for her daughter to proceed with the appeals and without payment of costs. The notices of appeal were not signed by the daughter and Rhodes, as a layperson cannot represent others. See Laguan v. Lloyd, 493 S.W.3d 720, 721 n.1 (Tex. App.—Houston [1st Dist.] 2016, no pet.). The appeals, therefore, will proceed with Rhodes as the sole appellant.
As to the second motion seeking consolidation of the appeals, we DENY the motion because the appeals are from separate trial court causes. If the appeals are submitted, however, they will be submitted on the same docket as companion cases.
We note the clerk's record required by Texas Rule of Appellate Procedure 34.5 has not been filed in either appeal. See TEX. R. APP. P. 34.5(a). Accordingly, we ORDER Lea Carlson, Rockwall County District Clerk, to file the record in each appeal no later than May 1, 2018. The record shall include, in addition to the required items, either a copy of any affidavits of indigence or statements of inability to pay costs filed by Sherry Rhodes or written verification none have been filed.
We DIRECT the Clerk of the Court to send a copy of this order to Carlson and the parties.
/s/ DAVID EVANS
JUSTICE