Summary
holding that summary judgment order entered after but on same day as order dismissing case for want of prosecution superceded dismissal order because trial court had plenary power to "vacate, modify, correct, or reform" dismissal order under Rule 329b(d)
Summary of this case from In Interest of R.C.M.Opinion
No. 06-06-00118-CV
Date Submitted: June 7, 2007.
Date Decided: June 8, 2007.
On Appeal from the 188th Judicial District Court Gregg County, Texas, Trial Court No. 2006-573-A.
Before MORRISS, C.J., CARTER and MOSELEY, JJ.
Memorandum Opinion by Justice MOSELEY.
MEMORANDUM OPINION
Donell Williams was arrested by law enforcement agents on drug charges August 29, 2001. Cash, guns, and other items were taken from him and were the subject of forfeiture proceedings. By a petition filed March 6, 2006, Williams brought suit against Maxey Cerliano (sheriff of Gregg County), Danny Butler (apparently a deputy sheriff of Gregg County), the Gregg Organized Drug Enforcement Unit, and Alexander Ray Tyra (an attorney whom Williams alleged represented him), alleging that much more money was taken from him than was turned in to the authorities; he alleged fraudulent conspiracy among all of the defendants and sought recovery under the federal Racketeer Influenced and Corrupt Organizations Act. One by one, the defendants filed motions for summary judgment, all of which were granted, until only Tyra remained.
On October 20, 2006, Tyra then filed a motion for summary judgment, to which Williams filed no response, although the certificate of service on the motion reflected that a copy of the motion had been sent to Williams on the same date the motion was filed.
Two judgments were signed on November 13, 2006: a judgment of dismissal with prejudice for want of prosecution and a summary judgment dismissing the claim against Tyra. Williams appeals from the judgment of dismissal with prejudice for want of prosecution and makes no mention of the order granting summary judgment.
The trial court, on the same day that it granted Tyra's motion to dismiss for want of prosecution, it also granted his motion for summary judgment, dismissing the suit brought against him by Williams. The trial court's docket sheet on that date first reflects that "Case called at docket call. Plaintiff failed to appear. DWOP" and then, in a second and separate entry, states, "Granted Tyra Motion for Summary Judgment." The court's record reveals that the clerk then sent Williams a notice of default judgment.
Although a docket entry cannot be used to contradict or prevail over a final judicial order, it can supply facts in certain situations. N-S-W Corp. v. Snell, 561 S.W.2d 798, 799 (Tex. 1977). Here, the docket sheet shows that the trial court entered the summary judgment after the dismissal for want of prosecution. Under the Texas Rules of Civil Procedure, the trial court has plenary power to grant a new trial, or vacate, modify, correct, or reform a judgment within thirty days after signing a final judgment. See Tex. R. Civ. P. 329b(d); Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 310 (Tex. 2000).
There can only be one final judgment. Tex. R. Civ. P. 301. A trial court retains plenary power to grant a new trial or to vacate, modify, correct, or reform a judgment within thirty days after the judgment is signed. Tex. R. Civ. P. 329b(d); First Alief Bank v. White, 682 S.W.2d 251, 252 (Tex. 1984). In this case, the trial court acted within its plenary power in substituting the summary judgment for the judgment of dismissal for want of prosecution.
Since the order from which Williams has appealed is defunct, having been superseded, it is not a final and appealable judgment from which an appeal can be prosecuted. See Poulter v. Poulter, 565 S.W.2d 107, 109 (Tex.Civ.App.-Tyler 1978, no writ); Home Fund, Inc. v. Denton Fed. Sav. Loan Ass'n, 485 S.W.2d 845, 848 (Tex.Civ.App.-Fort Worth 1972, no writ).
We dismiss the appeal for want of jurisdiction.