Opinion=20
issued October 5,=20
=
2006
In The
Court of =
Appeals
For The
First District of =
Texas
NO. 01-05-00627-CV
__________
PAUL =
RANDOLPH=20
PHILIP, JR., Appellant
V.
EREKA =
WASHINGTON=20
PHILIP AND
ALLETTE B.=20
WILLIAMS, Appellees
On =
Appeal from=20
the 246th District Court
Harris =
County,=20
Texas
Trial =
Court Cause=20
No. 99-25759
MEMORANDUM=20
OPINION
<=
/SPAN>Appellant,=20
Paul Randolph Philip, Jr., filed a post-judgment motion for =
sanctions=20
against appellees, Ereka Washington Philip and her attorney, =
Allette B.=20
Williams. The trial court ruled that its plenary jurisdiction had =
expired=20
and refused to consider the motion at the hearing. In his sole =
point of=20
error, appellant contends the trial court retained its plenary=20
jurisdiction and, therefore, committed error when it refused to =
consider=20
his motion for sanctions. We affirm.
Background
<=
/SPAN>Ereka=20
Washington Philip (=E2=80=9CEreka=E2=80=9D), through her attorney, =
Allette B. Williams,=20
non-suited her claim against Paul Randolph Philip, Jr. =
(=E2=80=9CPaul=E2=80=9D). The trial=20
court signed the order of dismissal, pursuant to the non-suit, on =
May 11,=20
2004. On June 9, 2004, Paul timely filed a motion for sanctions =
under rule=20
13 of the Texas Rules of Civil Procedure and section 9.011 of the =
Texas=20
Civil Practice and Remedies Code, alleging that Ereka=E2=80=99s =
claim was=20
groundless and brought in bad faith or for the purpose of =
harassment.=20
Tex. R. Civ. P. =
13; Tex. Civ. Prac. & Rem. Code =
Ann. =C2=A7 9.011 (Vernon 2005). The motion for sanctions =
was not heard=20
until March 18, 2005, at which point the trial court refused to =
act on the=20
motion because its plenary jurisdiction had expired. On May 27, =
2005, the=20
trial court signed its judgment in favor of Ereka and Williams on =
the=20
motion for sanctions, citing a lack of plenary power as the basis =
for the=20
judgment. Plenary=20
Jurisdiction
<=
/SPAN>In=20
his sole issue, Paul contends that the trial court erred in ruling =
that it=20
lacked jurisdiction to act on his motion for sanctions because its =
plenary=20
power had expired. Specifically, Paul argues that, because neither =
the=20
Texas Rules of Civil Procedure nor the Texas Civil Practice and =
Remedies=20
Code establishe ![3DComment](3D"")
s a date by which a timely filed =
motion for=20
sanctions must be heard, the trial court indefinitely retained its =
plenary=20
jurisdiction to rule on the motion. We disagree.
Standard of=20
Review
<=
/SPAN>Whether=20
a court has subject matter jurisdiction is a question of law. =
Tex.=20
Dep=E2=80=99t of Parks & Wildlife v. Miranda, 133 S.W.3d =
217, 226 (Tex.=20
2004); Alpert v. Crain, Caton & James, P.C., 178 S.W.3d =
398,=20
409 (Tex. App.=E2=80=94 Houston [1st Dist.] 2005, pet. =
ref=E2=80=99d). We review the issue=20
de novo. Tex. Dep=E2=80=99t of Parks & Wildlife, 133 =
S.W.3d at 226;=20
Alpert, 178 S.W.3d at 409.
Analysis=20
<=
/SPAN>During=20
its plenary jurisdiction, a trial court has the power to grant a =
motion=20
for sanctions under Texas Rule of Civil Procedure 13 though the =
motion was=20
not pending at the time a non-suit was filed. Scott & White =
Mem=E2=80=99l=20
Hosp. v. Schexnider, 940 S.W.2d 594, 595 (Tex. 1996). The =
trial court=20
retains plenary jurisdiction for a minimum of 30 days after the =
court=20
signs the order of dismissal. See Tex. R. Civ. P. 329b(d); =
see=20
also In re Bennett, 960 S.W.2d 35, 38 (Tex. 1997) =
(=E2=80=9CAppellate=20
timetables do not run from the date a non-suit is filed, but =
rather from=20
the date the trial court signs an order of =
dismissal.=E2=80=9D); In re T.G.,=20
68 S.W.3d 171, 175 (Tex. App.=E2=80=94Houston [1st Dist.] =
2002, pet. denied).=20
The plenary period may be extended by the filing of either a =
motion for=20
new trial, under rule 329b(e) of the Texas Rules of Civil =
Procedure, or a=20
motion to reform, modify, or correct the judgment, under Rule =
329b(g).=20
Tex. R. Civ. P. =
329b. A=20
motion for sanctions is treated as a motion to reform, modify, or =
correct=20
the judgment. Lane Bank Equip. Co. v. Smith S. Equip. Co., =
981=20
S.W.2d 302, 303 (Tex. App.=E2=80=94Houston [1st Dist.] 1998), =
aff=E2=80=99d, 10=20
S.W.3d 308 (2000). As such, a timely filed motion for sanctions =
extends=20
the trial court=E2=80=99s plenary jurisdiction. Id. Once =
extended by a=20
timely filed motion, the trial court retains its plenary power =
until 30=20
days after the motion is overr
uled, whether by written order or =
by=20
operation of law. In re T.G., 68 S.W.3d at 177. When the =
trial=20
court does not rule expressly on the motion, the motion is =
overruled as a=20
matter of law on the 75th day after the judgment was signed. =
Id. A=20
trial court must not grant a motion after its plenary jurisdiction =
has=20
expired. Scott & White Mem=E2=80=99l Hosp., 940 S.W.2d =
at=20
595.
<=
/SPAN>On=20
May 11, 2004, the trial court signed an order granting =
Ereka=E2=80=99s non-suit.=20
Under the general rule, the trial court=E2=80=99s plenary power =
was set to expire=20
30 days later, on June 10, 2004. Paul, however, timely filed a =
motion for=20
sanctions on June 97, 2004 and effectively extended the trial =
court=E2=80=99s=20
plenary power until the motion was either decided by written order =
or=20
overruled by operation of law. We consider the motion =
overruled by=20
operation of law on July 26, 2004 because the tri
al court did not rule on the =
motion within=20
75 days of the non-suit. The trial court retained its plenary =
jurisdiction=20
for an additional 30 days, meaning its plenary power expired on =
August 25,=20
2004. Therefore, the trial court did not have plenary power at the =
March=20
18, 2005 hearing and did not err by refusing to act on =
Paul=E2=80=99s motion for=20
sanctions.
<=
/SPAN>We=20
overrule Paul=E2=80=99s sole issue.
Conclusion
=
We=20
affirm the judgment of the trial court.
=
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; George=20
C. Hanks, Jr.
=
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; Justice
Panel consists of =
Justices=20
Taft, Keyes, and=20
Hanks. |