Summary
In Miranda, the parties entered into a settlement on March 26, 2009, requiring in one provision that the plaintiffs' attorney "make a payment to Defendant and or his insurer" to pay for a sanction awarded against the plaintiffs' attorney during the course of the proceedings.
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No. 05-09-00976-CV
Opinion issued November 16, 2010.
On Appeal from the County Court at Law, Kaufman County, Texas, Trial Court Cause No. 73302CC.
Before Justices BRIDGES, FRANCIS, and LANG.
MEMORANDUM OPINION
Nancy Miranda, Enrique Ochoa, and Houston M. Smith appeal the trial court's order granting Percy Antone Wilder's "motion to enforce mediated settlement agreement." In three issues, appellants argue the trial court's order was void because it was entered after the expiration of the court's plenary jurisdiction, and the trial court abused its discretion in granting the motion to enforce mediated settlement agreement because (1) disputes over settlement agreements arising after judgment require the filing of a new lawsuit and (2) trial courts are not empowered to change the terms of a written agreement between the parties. We vacate the trial court's order.
In March 2007, attorney Smith filed an original petition on behalf of Miranda and Ochoa against Wilder in a matter arising from a car accident. On July 22, 2008, the trial court verbally awarded $1000 in attorney's fees to Wilder as a sanction against Smith. On September 4, 2008, Wilder died, and the district clerk issued a scire facias directing the executrix of Wilder's estate to appear. Wilder's executrix never entered an appearance. On March 26, 2009, the parties entered a mediated settlement agreement requiring, among other things, that Smith "make a payment to Defendant and or his insurer, within 14 days of his receipt of the settlement funds." On April 14, 2009, Smith made out a check for $1000 to "Mr. Percy Wilder AND Texas Colonial General Agency, Inc. Old American County Mutual Insurance." On April 15, 2009, the trial court entered an order granting Miranda and Ochoa's motion for nonsuit and dismissing their claims with prejudice. Thirty days later, on May 15, 2009, Wilder's attorney filed a motion to enforce the mediated settlement agreement in which he stated the check made out to Wilder and his insurance company could not be negotiated because Wilder was deceased. The motion pointed out the mediated settlement agreement required Smith to make the check payable to Wilder "and or" his insurance company. According to the motion, counsel contacted Smith, who refused to re-issue the check. The motion requested the trial court order Smith to re-issue a $1000 check made out to Wilder's insurance company. On July 17, 2009, the trial court entered an order granting the motion to enforce the mediated settlement agreement and ordering Smith to reissue a $1000 check payable to Wilder's insurance company. This appeal followed.
In their first issue, appellants argue the trial court's order was void because it was entered after the expiration of the court's plenary jurisdiction. A trial court retains jurisdiction over a case for a minimum of thirty days after signing a final judgment. Tex. R. Civ. P. 329b(d); Lane Bank Equip. Co. v. Smith S. Equip. Inc., 10 S.W.3d 308, 310 (Tex. 2000). The period of plenary power may be extended, however, by timely filing an appropriate postjudgment motion. Lane Bank, 10 S.W.3d at 310. Thus, the filing of a motion for new trial or a motion to modify, correct, or reform the judgment within the initial thirty-day period extends the trial court's jurisdiction over its judgment up to an additional seventy-five days, depending on when or whether the court acts on the motions. Id. (citing Philbrook v. Berry, 683 S.W.2d 378, 379 (Tex. 1985)); see Tex. R. Civ. P. 329b. A timely filed postjudgment motion that seeks a substantive change in an existing judgment qualifies as a motion to modify under rule 329b(g), thus extending the trial court's plenary jurisdiction and the appellate timetable. Lane Bank, 10 S.W.3d at 313. A motion made after judgment to incorporate a sanction as part of the final judgment does propose a change to that judgment and is, on its face, a motion to modify, correct, or reform that existing judgment within the meaning of rule 329b(g). See Tex. R. Civ. P. 329b(g) (motion to modify, correct, or reform judgment shall extend trial court's plenary power and time for perfecting appeal in same manner as motion for new trial); Lane Bank, 10 S.W.3d at 312.
Here, the "motion to enforce mediated settlement agreement" requested an order requiring Smith to re-issue the $1000 check required under the terms of the mediated settlement agreement. Part of the relief sought as a sanction was an amount equal to the attorney's fees required to prepare, file, and prosecute the motion. Having reviewed the motion, we cannot conclude it sought a substantive change in the trial court's existing judgment. See Lane Bank, 10 S.W.3d at 313. The motion did not seek modification, correction, or reformation of the trial court's judgment and did not otherwise request a substantial change of the trial court's judgment. Because the motion for sanctions did not seek to alter the judgment, but instead sought sanctions for the attorney's fees required to prepare, file, and prosecute the "motion to enforce mediated settlement agreement," the motion for sanctions did not extend the appellate timelines or the trial court's plenary power. See Guajardo v. Conwell, 30 S.W.3d 15, 16 (Tex. App.-Houston [14th Dist.] 2000) (per curiam) (motion seeking sanctions for failure to comply with judgment did not extend appellate timelines), aff'd per curiam, 46 S.W.3d 862 (Tex. 2001). Accordingly, the motion did not extend the appellate deadlines or the trial court's plenary power under rule 329b(g). See Lane Bank, 10 S.W.3d at 313; Guajardo, 30 S.W.3d at 16. We sustain appellants' first issue. Because of our disposition of appellants' first issue, we need not address appellants' remaining issues.
We vacate the trial court's July 17, 2009 "order granting defendants' motion to enforce mediated settlement agreement."