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Moore v. Novark9/28/1995
he court's order allowed mention of the details of the termination of Novark's employment with the Harris County Sheriff's Department and the Willis Police Department only as these matters affected the issue of damages.
Novark first complained that Burnett did not join in her client's notice of appeal and appeal bond or file a separate notice and bond, and therefore, this court had no jurisdiction to consider the propriety of an order imposing sanctions against the attorney personally. To invoke the jurisdiction of a court of appeals in civil cases, a cost bond, cash deposit, or affidavit of inability must be timely filed. TEX. R. APP. P. 40(a) and 41(a). Defects in the bond, cash deposit in lieu of bond, or notice of appeal may be amended. See City of San Antonio v. Rodriguez, 828 S.W.2d 417, 418 (Tex. 1992) (wrong cause number); Woods Expl. & Prod. Co. v. Arkla Equip. Co., 528 S.W.2d 568, 570 (Tex. 1975) (one appellant named instead of all three appellants); El Paso Central Appraisal Dist. v. Montrose Partners, 754 S.W.2d 797, 799 (Tex. App. -- El Paso 1988, writ denied) (wrong party named as appellant). Following the Supreme Court's directive to permit amendments to defective bonds, we allowed the bond in this case to be amended to show Barbara Burnett as a party to the appeal. See Maxfield v. Terry, 888 S.W.2d 809, 811 (Tex. 1994) (court of appeals should give appellant an opportunity to correct any defect in appeal bond before dismissing appeal). Now that our jurisdiction is properly established, we examine the merits of the attacks on the sanctions order against Burnett.
Originally, at the close of jury arguments on April 15, 1993, the court entered an order holding Burnett in contempt of court for violations of the court's order on Novark's motion in limine. The court ordered Burnett to perform 25 hours of community service to a charity of her choice. Burnett moved for reconsideration of the court's order and a hearing was held on May 14, 1993. At the conclusion of the hearing the court announced that she would withdraw the contempt order and issue an order of sanctions, changing the punishment imposed. The court ordered Burnett to perform no less than 25 hours of mentoring to women lawyers and deliver a one-hour lecture on motions in limine. An order incorporating the trial court's decision was not entered until August 25, 1993 ("the sanctions order").
The trial court entered its final judgement on the jury's verdict on May 10, 1993. Appellants timely filed a motion for new trial. As there is no order in our record overruling the motion, we assume it was overruled by operation of law seventy-five days after judgment. TEX. R. CIV. P. 329b(c), (e); Clark & Co. v. Giles, 639 S.W.2d 449, 450 (Tex. 1982). The court's plenary power extended another thirty days, or 105 days after entry of judgment. Transamerican Leasing Co. v. Three Bears, Inc., 567 S.W.2d 799, 800 (Tex. 1978). Therefore, the court's plenary power expired on Monday, August 23, 1993, two days before the sanctions order was executed.
A court's jurisdiction to act must be legally invoked or its power to act is nonexistent and its acts are void. State v. Olsen, 360 S.W.2d 398, 399 (Tex. 1962) (orig. proceeding). Even a court's inherent judicial power does not confer jurisdiction where none exists. Eichelberger v. Eichelberger, 582 S.W.2d 395, 399 (Tex. 1979). A motion for sanctions does not survive the expiration of the trial court's plenary jurisdiction. Jobe v. Lapidus, 874 S.W.2d 764, 766 (Tex. App. -- Dallas 1994, writ denied). A court has no power to order sanctions after its plenary power has expired. Hjalmarson v. Langley, 840 S.W.2d 153, 154-55 (Tex. App. -- Waco 1992, orig. proceeding). A tr
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