Telkamp v. Stein Mart

Full title: ELOISA GOMEZ TELKAMP, Appellant, v. STEIN MART, INC., LESLIE SULLIVAN…

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Aug 17, 2006

No. 05-05-01408-CV (Tex. App. Aug. 17, 2006)

Opinion

No. 05-05-01408-CV

Opinion issued August 17, 2006.

On Appeal from the 95^th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 05-01926-C.

Affirmed.

Before Justices MORRIS, O'NEILL, and MAZZANT.

MEMORANDUM OPINION

Opinion By Justice MAZZANT.

Eloisa Gomez Telkamp, pro se, appeals the 95^th District Court's orders that (1) granted Judge Gary Hall's plea to the jurisdiction; (2) granted Lanetta Jackson Williams,¹ Felicia Williams, and Laura Nutting's plea to the jurisdiction; (3) granted Stein Mart, Inc., Leslie Sullivan, Shelly Fisher Martin,² and Rebecca Singer's motion for summary judgment; and (4) denied Telkamp's motion for summary judgment. Telkamp raises three issues on appeal that argue (1) Judge Charles Stokes of the 68^th District Court committed fundamental error in Telkamp's first state court lawsuit, cause no. 02-03787-C, when, without legal authority, he assigned retired Judge Gary Hall to assist him with pretrial proceedings; (2) Judge Hall improperly ordered summary judgment in favor of Stein Mart, Sullivan, and Martin in Telkamp's first state court lawsuit in the 68^th District Court, cause no. 02-03787-C, because they did not move for summary judgment; and (3) the 95^th District Court erred in the underlying lawsuit, cause no. 05-01926-C, when it granted Judge Hall's and L. Williams, F. Williams, and Nutting's pleas to the jurisdiction and Stein Mart, Sullivan, Martin, and Singer's motion for summary judgment.

1 The record also refers to L. Williams as "Lenetta Jackson Williams," "Lenetta Williams," "Lenetta J. Williams," and "Lanetta Williams."

2 The record also refers to Martin as "Shelly Martin" and "Shelly Fisher-Martin."

We conclude this Court has no authority to review Telkamp's first and second issues which complain of error in Telkamp's first state court lawsuit in the 68^th District Court. We conclude the 95^th District Court did not err in the underlying lawsuit when it granted the pleas to the jurisdiction and the motion for summary judgment. The 95^th District Court's judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

This case arises from Telkamp's employment at Stein Mart. Telkamp sued Stein Mart and Sullivan and Cassandra Stokes, employees of Stein Mart, in the United States District Court for the Northern District of Texas on February 14, 2000, alleging employment-related claims. See Telkamp v. Stein Mart, Inc., No. 3-00CV0340-D, 2002 WL 324288, at *1 (N.D. Tex. Feb. 27, 2002) (not reported in F. Supp. 2d). On February 27, 2002, the federal district court granted Stein Mart, Sullivan, and Stokes's motion for summary judgment and dismissed Telkamp's case against them. See id. at *10. Telkamp did not appeal the United States District Court's ruling.

On April 26, 2002, Telkamp sued Stein Mart, Sullivan, and Martin in the 68^th District Court alleging libel, slander, and constructive discharge. On February 28, 2003, the 68^th District Court granted Stein Mart, Sullivan, and Martin's motion for summary judgment and dismissed Telkamp's claims. See Telkamp v. Stein Mart, Inc., No. 02-03787-C (68^th Dist. Ct., Dallas County, Tex. Feb. 28, 2003). Telkamp filed three petitions for writ of mandamus in this Court, contending (1) F. Williams, the trial court clerk, failed to give the trial judge a proposed order she drafted and the judgment signed by Judge Hall is a forgery; (2) Judge Hall erred when he signed the judgment granting Stein Mart, Sullivan, and Martin's motion for summary judgment; and (3) the trial judge abused his discretion when he refused to sign a final appealable order. See In re Telkamp, No. 05-03-01614-CV, 2003 WL 22794441 (Tex.App.-Dallas Nov. 25, 2003, orig. proceeding [mand. denied]) (mem. op.); In re Telkamp, No. 05-04-00839-CV, 2004 WL 1434791 (Tex.App.-Dallas Jun. 28, 2004, orig. proceeding [mand. denied]) (mem. op.); In re Telkamp, No. 05-05-01063-CV, 2005 WL 1983580 (Tex.App.-Dallas Aug. 18, 2005, orig. proceeding) (mem. op.). This Court denied all three of Telkamp's petitions for writ of mandamus. See In re Telkamp, 2003 WL 22794441; In re Telkamp, 2004 WL 1434791; In re Telkamp, 2005 WL 1983580. Meanwhile, Telkamp appealed the 68^th District Court's summary judgment order which dismissed her cause with prejudice. See Telkamp v. Stein Mart, Inc., No. 05-04-00244-CV, 2004 WL 1258178 (Tex.App.-Dallas Jun. 9, 2005, no pet.) (mem. op.) (per curiam) (not designated for publication). This Court dismissed Telkamp's appeal of her first state court lawsuit in the 68^th District Court for want of jurisdiction. See id.

On October 12, 2004, Telkamp filed the underlying lawsuit in the 416^th District Court, Collin County, Texas, against Stein Mart, Martin, Sullivan, L. Williams, F. Williams, and Nutting alleging the defendants committed civil conspiracy and forgery in her first state court lawsuit in the 68^th District Court. Telkamp also added as defendants Judge Hall and Singer, defense counsel for Stein Mart. On February 2, 2005, after a hearing, the 416^th District Court transferred the case to the 68^th District Court, Dallas County. After the judge for the 68^th District Court recused himself, the case was transferred to the 95^th District Court.³ On July 14, 2005, after a hearing, the 95^th District Court (1) granted Judge Hall's plea to the jurisdiction; (2) granted L. Williams, F. Williams, and Nutting's plea to the jurisdiction; (3) granted Stein Mart, Sullivan, Martin, and Singer's motion for summary judgment; and (4) denied Telkamp's motion for summary judgment.

3 When the case was transferred from the 68^th District Court to the 95^th District Court, it retained the same cause no.

ERROR IN THE EARLIER STATE COURT LAWSUIT

In her first and second issues, Telkamp argues (1) Judge Stokes of the 68^th District Court committed fundamental error in her first state court lawsuit when, without legal authority, he assigned retired Judge Hall to assist him with pretrial proceedings and (2) Judge Hall improperly ordered summary judgment in favor of Stein Mart, Sullivan, and Martin in her first state court lawsuit in the 68^th District Court because they did not move for summary judgment. Stein Mart, Sullivan, Martin, and Singer respond that Telkamp's first and second issues are not related to her claims of civil conspiracy and forgery in the underlying lawsuit in the 95^th District Court and she cannot raise issues on appeal that should have been raised or were previously decided in her first state court lawsuit in the 68^th District Court or its related appeal and original proceedings. Judge Hall responds that the 95^th District Court was correct in disregarding Telkamp's arguments concerning the summary judgment order of the 68^th District Court in appellant's first state court lawsuit because the record shows Judge Hall did not sign a summary judgment order. Also, L. Williams, F. Williams, and Nutting respond that they acted legally and within the scope of their authority.

Texas Rule of Appellate Procedure 19.1 provides that an appellate court's plenary power over its judgment expires 60 days after the judgment if no timely filed motion to extend time or motion for rehearing is then pending. See Tex.R.App.P. 19.1; see also Castle Tex. Prod. Ltd. P'ship v. The Long Trusts, 161 S.W.3d 673, 674 (Tex.App.-Tyler 2005, no pet.). After the expiration of the appellate court's plenary power, it cannot vacate or modify its judgment. See Tex.R.App.P. 19.3; see also Castle Tex. Prod., 161 S.W.3d at 674. After its plenary power has expired, an appellate court may only (a) correct a clerical error in its judgment or opinion; (b) issue and recall its mandate as provided in the rules of appellate procedure; (c) enforce or suspend enforcement of its judgment as the rules of appellate procedure or applicable laws provide; (d) order or modify the amount and type of security required to suspend a judgment and decide the sufficiency of the sureties under rule 24; and (e) order its opinion published in accordance with rule 47. See Tex.R.App.P. 19.3; see also Castle Tex. Prod., 161 S.W.3d at 674-75. An appellate court has no authority to set its earlier judgment aside once its plenary power has expired. See Kacal v. Cohen, 13 S.W.3d 900, 902 (Tex.App.-Waco 2000, no pet.).

On February 24, 2004, Telkamp filed a notice of appeal for her first state court lawsuit in the 68^th District Court seven months and sixteen days after the 68^th District Court signed an order granting Stein Mart, Sullivan, and Martin's motion for summary judgment. See Telkamp, 2004 WL 1259178 at *1; see also In re Telkamp, 2004 WL 1434791 at *1. On June 9, 2004, this Court dismissed Telkamp's appeal for want of jurisdiction because the notice of appeal was untimely. See Telkamp, 2004 WL 1259178 at *1; see also In re Telkamp, 2004 WL 1434791 at *1. The mandate in that appeal issued on September 3, 2004. This Court's plenary power with respect to the 68^th District Court's judgment in Telkamp's first state court lawsuit has expired. As a result, this Court has no authority to vacate or modify its judgment dismissing Telkamp's appeal of the 68^th District Court's judgment. Accordingly, this Court has no authority to review Telkamp's first and second issues.

ERROR IN THE UNDERLYING LAWSUIT

In her third issue, Telkamp argues there is insufficient evidence to support the 95^th District Court's orders in the underlying lawsuit that (1) granted Judge Hall's plea to the jurisdiction; (2) granted L. Williams, F. Williams, and Nutting's plea to the jurisdiction; (2) granted Stein Mart, Sullivan, Martin, and Singer's motion for summary judgment; and (3) denied Telkamp's motion for summary judgment.

Pleas to the Jurisdiction

Telkamp argues there is insufficient evidence to support the 95^th District Court's order granting Judge Hall's, and L. Williams, F. Williams, and Nutting's pleas to the jurisdiction. Telkamp's arguments implicate two different areas of the law relating to immunity. As a result, we will first set out the standard for reviewing a trial court's order on a plea to the jurisdiction and then address Judge Hall's plea to the jurisdiction separately from L. Williams, F. Williams, and Nutting's plea to the jurisdiction.

Standard of Review

A plea to the jurisdiction is a dilatory plea. Its purpose is "to defeat a cause of action without regard to whether the claims asserted have merit." Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); Willms v. Americas Tire Co., 190 S.W.3d 796, 809 (Tex.App.-Dallas 2006, pet. denied). A plea to jurisdiction contests a trial court's subject matter jurisdiction. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999); Willms, 190 S.W.3d at 809; Benefit Realty Corp. v. City of Carrollton, 141 S.W.3d 346, 348 (Tex.App.-Dallas 2004, pet. denied). The purpose of the plea "is not to force the plaintiffs to preview their case on the merits, but to establish a reason why the merits of the plaintiffs' claims should never be reached." Bland, 34 S.W.3d at 554; Willms, 190 S.W.3d at 809. A trial court must grant a plea to the jurisdiction, after providing an appropriate opportunity to amend, when the pleadings do not state a cause of action on which the trial court has jurisdiction. Harris County v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004); Willms, 190 S.W.3d at 809.

Whether a trial court has subject matter jurisdiction is a matter of law. Tex. Dep't of Parks Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002); Willms, 190 S.W.3d at 808; Dallas County v. Wadley, 168 S.W.3d 373, 376 (Tex.App.-Dallas 2005, pet. denied). Accordingly, an appellate court reviews a challenge to the trial court's subject matter jurisdiction de novo. Willms, 190 S.W.3d at 808; Benefit Realty Corp., 141 S.W.3d at 348. In performing this review, an appellate court does not look to the merits of the case but considers only the pleadings and evidence relevant to the jurisdictional inquiry. Miranda, 133 S.W.3d at 227; County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002); Willms, 190 S.W.3d at 809.

Order Granting Judge Hall's Plea to the Jurisdiction

In her second amended petition, Telkamp alleged causes of action for forgery and conspiracy against Judge Hall. She claimed Judge Hall forged the order granting Stein Mart, Sullivan, and Martin's counter motion for summary judgment on February 28, 2003.⁴ Also, she claimed Judge Hall was retired and was not assigned to the 68^th District Court.

4 It is unclear whether Telkamp is arguing Judge Hall signed his name to the order or Judge Stokes's name.

In his plea to the jurisdiction, Judge Hall asserts he is entitled to judicial immunity. Judge Hall argues that his assignment to the 101^st District Court entitled him to take judicial action for the 68^th District Court. Thus, Telkamp cannot sue him for the alleged act of signing a final judgment for the 68^th District Court.

Attached to Judge Hall's second amended plea to the jurisdiction was an order of assignment signed by Presiding Judge Ovard of the First Administrative Judicial Region on January 23, 2003. The order assigns Judge Hall, Senior Judge of the 68^th District Court, to the 101^st District Court, Dallas County, Texas, pursuant to section 74.056 of the Texas Government Code.⁵ The order of assignment states

5 Judges may be assigned in the manner provided by Chapter 74 of the Texas Government Code when necessary to dispose of accumulated business in the region. See Tex. Gov't Code Ann. §§ 74.052(a), 74.056 (Vernon 2005); DiFerrante v. Smith, 940 S.W.2d 843, 847 (Tex.App.-Houston [14^th Dist.] 1997, no pet.), disapproved of on other grounds In re Canales, 52 S.W.3d 698 (Tex. 2001). An assigned judge has all of the powers of the judge of the court to which he is assigned. See Tex. Gov't Code Ann. § 74.059(a). A district court judge may hear and determine a matter pending in any district court in the county and may sign a judgment or order in any of the courts. See Tex. Gov't Code Ann. § 74.094(a).

The assignment is for a period of two days beginning 2/27/03, providing that the assignment shall continue after the specified period of time as may be necessary for the assigned Judge to complete trial of any case or cases begun during this period, and to pass on motions for new trial and all other matters growing out of cases tried by the Judge herein assigned during this period.

Judge Hall was assigned to the 101^st District Court on February 28, 2003, the date Telkamp alleges the judge signed the summary judgment order. As a result, Judge Hall had all of the powers and duties of the judge of the 101^st District Court. See Tex. Gov't Code Ann. § 74.059(a) (Vernon 2005). The judge of the 101^st District Court may hear and determine any matter pending in the district courts of the county and may sign a judgment or order in any of the courts. See Tex. Gov't Code Ann. § 74.094(a). The 101^st District Court is composed of Dallas County. Tex. Gov't Code Ann. § 24.203(a) (Vernon 2004). The 68^th District Court is also composed of Dallas County. Tex. Gov't Code Ann. § 24.170(a). Accordingly, assuming without deciding that Judge Hall signed the summary judgment on February 28, 2003, in Telkamp's lawsuit pending in the 68^th District Court, he was authorized to do so and has judicial immunity. See Tex. Civ. Prac. Rem. Code Ann. § 101.053(a) (Vernon 2005); Twilligear v. Carrell, 148 S.W.3d 502, 504 (Tex.App.-Houston [14^th Dist.] 2004, pet. denied).

We conclude the 95^th District Court did not err when it granted Judge Hall's plea to the jurisdiction because Judge Hall is covered by judicial immunity.

Order Granting L. Williams, F. Williams, and Nutting's Plea to the Jurisdiction

Telkamp sued L. Williams and F. Williams for civil conspiracy and Nutting for civil conspiracy and forgery. Telkamp alleged L. Williams, F. Williams, and Nutting engaged in a conspiracy with Judge Stokes, Judge Hall, and Singer to falsify the 68^th District Court's records to reflect Stein Mart, Sullivan, and Martin filed a motion for summary judgment, Judge Stokes held a hearing on that motion for summary judgment, and Judge Stokes signed the order granting that motion for summary judgment, when she claims no such summary judgment motion had been filed. L. Williams, F. Williams, and Nutting filed their second amended plea to the jurisdiction claiming (1) they were entitled to derived judicial immunity because they were acting in their official capacity for the 68^th District Court;⁶ (2) they were acting within the scope of their authority, not ultra vires; and (3) sovereign immunity based on their status as employees of Dallas County and the Texas Tort Claims Act does not waive sovereign immunity for intentional torts.

6 Although they did not label their argument as one for derived judicial immunity, it is clear they are tying their actions, which they claim were in their official capacity, to the 68^th District Court.

First, the basis of Telkamp's claims is not that L. Williams, F. Williams, and Nutting engaged in misconduct relating to their ministerial duties but that they engaged in a conspiracy with Judge Stokes and Judge Hall to falsify the 68^th District Court's records to hide the judges' errors in the case. As such, Telkamp's claims challenge conduct that the judges allegedly delegated or directed them to perform.

Texas courts have recognized that derived judicial immunity applies in certain contexts. See Halsey, 87 S.W.3d at 554. The Texas Tort Claims Act's waiver of immunity does not apply to a claim based on the act or omission of any member of a court acting in his official capacity. Tex. Civ. Prac. Rem. Code Ann. § 101.053(a). Official capacity is defined as all duties of office including administrative decision or actions. Id. Texas courts use the federally conceived "functional approach" to determine if one who is not a judge is nonetheless entitled to judicial immunity. See Halsey, 87 S.W.3d at 554-555. The functional approach looks to whether the person seeking immunity is intimately associated with the judicial process and if that person exercises discretionary judgment comparable to that of a judge. See id. at 554.

When judges delegate their authority or appoint others to perform services for the court, the judicial immunity that attached to the judge may follow the delegation or appointment. See Byrd v. Woodruff, 891 S.W.2d 689, 707 (Tex.App.-Dallas 1994, writ denied); Delcourt v. Silverman, 919 S.W.2d 777, 781 (Tex.App.-Houston [14^th Dist.] 1996, writ denied); accord Clay v. Allen, 242 F.3d 679, 682 (5^th Cir. 2001); Williams v. Wood, 612 F.2d 982, 985 (5^th Cir. 1980). The extension of a judge's absolute immunity to court personnel who do not exercise a discretionary function comparable to that of the judge is most compelling when the lawsuit challenges conduct specifically directed by the judge, and not simply the manner in which the judge's directive was carried out. See Kincaid v. Vail, 969 F.2d 594, 601 (7th Cir. 1992); Dellenbach v. Letsinger, 889 F.2d 755, 763 (7^th Cir. 1989); Eades v. Sterlinske, 810 F.2d 723, 726 (7th Cir. 1987).

Based on Telkamp's allegations, L. Williams, F. Williams, and Nutting are entitled to derived judicial immunity. See Tex. Civ. Prac. Rem. Code Ann. § 101.53(a); Kincaid, 969 F.2d at 601; Dellenbach, 889 F.2d at 763; Eades, 810 F.2d at 726. The facts of this case are distinguishable from Halsey where the Texas Supreme Court concluded a court reporter was not entitled to derived judicial immunity when preparing the reporter's record at the request of a party. See Halsey, 554-57. Here, Telkamp does not complain about the preparation of the reporter's record, but the fact that Judge Stokes directed Telkamp to contact L. Williams to ascertain what was said at a hearing and there is a reporter's record for the hearing on the motion for summary judgment, when Telkamp claims no such summary judgment motion had been filed. Also, based on our conclusion that L. Williams, F. Williams, and Nutting are entitled to derived judicial immunity, we need not determine whether they were covered by Dallas County's sovereign immunity.

Second, Telkamp claims that L. Williams and F. Williams were acting ultra vires, exceeding the scope of their authority. However, Telkamp does not claim Nutting was acting ultra vires. Telkamp contends that no motion for summary judgment was filed so (1) L. Williams, the court reporter, acted ultra vires when the 68^th District Court directed Telkamp to contact L. Williams to accurately ascertain what was said at the summary judgment hearing and the reporter's record indicated Stein Mart, Sullivan, and Martin's motion for summary judgment was heard on February 10, 2003; and (2) F. Williams, the trial court clerk, acted ultra vires when she made an entry on the docket sheet indicating Stein Mart, Sullivan, and Singer's motion for summary judgment was set for a hearing on February 10, 2003, at 2:00 p.m. before Judge Stokes. As part of their plea to the jurisdiction, L. Williams and F. Williams presented evidence that they acted in their official capacity and not ultra vires.⁷ Telkamp did not dispute this evidence.

7 On request, an official court reporter shall attend all sessions of the court, take full shorthand notes of oral testimony, including objections, and furnish a transcript of the reported evidence or other proceedings. See Tex. Gov't Code Ann. § 52.046(a). The duties of the district clerk include recording the acts and proceedings of the court and entering all judgments of the court under the direction of the judge. See Tex. Gov't Code Ann. § 51.303(b) (Vernon 2005); Bridgman v. Moore, 143 Tex. 250, 254, 183 S.W.2d 705, 707 (Tex. 1944). The district clerk may appoint deputy clerks who may perform, in the name of the district clerk, all official acts of the office of district clerk. See Tex. Gov't Code Ann. § 51.309(a). Accordingly, we conclude F. Williams was not acting ultra vires.

We conclude the 95^th District Court did not err when it granted L. Williams, F. Williams, and Nutting's plea to the jurisdiction.

Summary Judgment

Telkamp argues the 95^th District Court's order granting summary judgment in favor of Stein Mart, Sullivan, Martin, and Singer and its order denying Telkamp's motion for summary judgment perpetuate the fundamental errors of the 68^th District Court in her first state court lawsuit. Also, Telkamp argues the 95^th District Court's summary judgment is opposed to the evidence. Stein Mart, Sullivan, Martin, and Singer respond that the summary judgment in the underlying lawsuit in the 95^th District Court was proper because summary judgment was proper in Telkamp's first state court lawsuit in the 68^th District Court.

The standard for reviewing a traditional summary judgment is well-established. See Sysco Food Servs. v. Trapnell, 890 S.W.2d 796, 800 (Tex. 1994); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985); First Union Nat'l Bank v. Richmont Capital Partners I, L.P., 168 S.W.3d 917, 923 (Tex.App.-Dallas 2005, no pet.). We review a summary judgment de novo to determine whether a party's right to prevail is established as a matter of law. First Union, 168 S.W.3d at 923; Dickey v. Club Corp. of Am., 12 S.W.3d 172, 175 (Tex.App.-Dallas 2000, pet. denied). A party moving for traditional summary judgment carries the burden of establishing that no material fact issue exists and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); M.D. Anderson Hosp. Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000) (per curiam); First Union, 168 S.W.3d at 923. A matter is conclusively established if ordinary minds could not differ as to the conclusion to be drawn from the evidence. Triton Oil Gas Corp. v. Marine Contractors Supply, Inc., 644 S.W.2d 443, 446 (Tex. 1982); First Union, 168 S.W.3d at 923. When reviewing a motion for summary judgment, the court takes the nonmovant's evidence as true, indulges every reasonable inference in favor of the nonmovant, and resolves all doubts in favor of the nonmovant. Willrich, 28 S.W.3d at 23-4; First Union, 168 S.W.3d at 923.

Telkamp sued Stein Mart, Sullivan, Martin, and Singer for civil conspiracy. The underlying tort for which Telkamp seeks to hold them liable is forgery. The elements of civil conspiracy are (1) two or more persons; (2) an object to be accomplished; (3) a meeting of the minds on the object or course of action; (4) one or more unlawful, overt acts; and (5) damages as a proximate result. Tri v. J.T.T., 162 S.W.3d 552, 556 (Tex. 2005). Civil conspiracy requires a specific intent to agree to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means. Juhl v. Airington, 936 S.W.2d 640, 644 (Tex. 1996). Civil conspiracy is a derivative tort and a defendant's liability for conspiracy depends on participation in some underlying tort for which the plaintiff seeks to hold at least one of the named defendants liable. Yokogawa Corp. of Am. v. Skye Int'l Holdings, Inc., 159 S.W.3d 266, 272 (Tex.App.-Dallas 2005, no pet.).

Telkamp's civil conspiracy claim depends on Stein Mart, Sullivan, Martin, and Singer's participation in the alleged forgery. See Yokogawa, 159 S.W.3d at 272. Attached to Stein Mart, Sullivan, Martin, and Singer's response to Telkamp's motion for summary judgment and counter motion for summary judgment are numerous exhibits including a memo from Judge Stokes to the parties and the file in cause no. 02-03787-C that states

The Court has reviewed the file and makes the determination that a judgment was signed by me granting [Stein Mart, Sullivan, and Martin's] motion for summary judgment and denying [Telkamp's] motion for summary judgment. The hearing was held on February 10, 2003 and a record was made by the Court Reporter. To ascertain what was said at the hearing contact the Court Reporter Lenetta [sic] Jackson Williams.

They also attached a copy of the transcript of the hearing on their motion for summary judgment in the 68^th District Court which reflects that, at the conclusion of the hearing, Judge Stokes stated, "I'm going to grant the Defendants' Motion for Summary Judgment, deny the plaintiff's." Accordingly, we conclude the 95^th District Court did not err when it granted Stein Mart, Sullivan, Martin, and Singer's motion for summary judgment because the summary judgment evidence shows Judge Stokes signed the summary judgment in Telkamp's first state court lawsuit so there was no forgery and, without the forgery, there was no civil conspiracy.

V. CONCLUSION

This Court has no authority to review Telkamp's first and second issues which complain of error in Telkamp's first state court lawsuit in the 68^th District Court. The 95^th District Court did not err in the underlying lawsuit when it granted Judge Hall's and L. Williams, F. Williams, and Nutting's pleas to the jurisdiction and Stein Mart, Sullivan, Martin, and Singer's motion for summary judgment and denied Telkamp's motion for summary judgment.

The 95^th District Court's judgment is affirmed.