Background

In Offshore Express, Inc. v. Klein Investigations and Consulting, 09-17-00333-CV, (Tex. App. – Beaumont December 13, 2018), the trial court had entered default judgments against several defendants. Those defendants filed a motion for new trial then an appeal when the motion for new trial was denied. During the appeal, one of the defendants filed a suggestion of bankruptcy which stayed the proceedings.

After the suggestion of bankruptcy was filed and while the appeal was pending, the Appellee filed a motion for sanctions in the trial court against the Appellants’ attorneys for filing the suggestion of bankruptcy alleging that it was a fraudulent pleading intended to stop Appellees’ collection efforts. Appellees filed a motion to dismiss the motion for sanctions under the Texas Citizens Participation Act (TCPA), referred to as the Texas Anti-SLAPP law. The TCPA motion was denied and the Appellees appealed.

Court of Appeals

The appeals court first looked to see if it had subject matter jurisdiction.

Generally, we have appellate jurisdiction over an interlocutory appeal of a denial of a motion to dismiss filed under section 27.003 of the Texas Civil Practice and Remedies Act. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(12) (West Supp. 2018) (citing Tex. Civ. Prac. & Rem. Code Ann. § 27.003 (West 2015)). Even so, we must review sua sponte issues affecting the trial court’s subject matter jurisdiction. See M.O. Dental Lab v. Rape139 S.W.3d 671, 673 (Tex. 2004). Whether a trial court has subject-matter jurisdiction is a question of law we review de novo. See Tex. Nat. Res. Conservation Comm’n v. IT-Davy74 S.W.3d 849, 855 (Tex. 2002). Subject-matter jurisdiction is fundamental, it may be raised for the first time on appeal without the usual requirements for preservation of error or assignment of error. See Tex. Ass’n of Bus. v. Tex. Air Contr. Bd.852 S.W.2d 440, 445 (Tex. 1993) (appellate court’s subject matter jurisdiction may be raised by the court sua sponte).

The trial court’s plenary power ended when the appeal was taken. The motion for sanctions and the motion to dismiss under the Texas Anti-SLAPP statute, were filed after the trial court lost its plenary power.

Any judicial action taken by the trial court after the trial court’s plenary power expired is void. See In re Dickason987 S.W.2d 570, 571 (Tex. 1998) (orig. proceeding); State ex rel. Latty v. Owens907 S.W.2d 484, 486 (Tex. 1995); Malone v. Hampton182 S.W.3d 465, 468 (Tex. App.-Dallas 2006, no pet.) (“Judicial action taken after the expiration of the court’s jurisdiction is a nullity, and any orders signed outside the court’s plenary jurisdiction are void.”); see also Mapco, Inc. v. Forrest795 S.W.2d 700, 703 (Tex. 1990) (defining a void judgment as one rendered when a court has no jurisdiction over parties or subject matter, no jurisdiction to render judgment, or no capacity to act as a court). An appellate court has no jurisdiction to consider the merits of an appeal from a void judgment. Ins. Co. of Pa. v. Martinez18 S.W.3d 844, 847 (Tex. App.-El Paso 2000, no pet.); Dallas Cty. Appraisal Dist. v. Funds Recovery, Inc.887 S.W.2d 465, 468 (Tex. App.-Dallas 1994, writ denied). When faced with a void judgment on appeal, the appellate court should declare the judgment void. See State ex rel. Latty, 907 S.W.2d at 486 (citing Fulton v. Finch346 S.W.2d 823, 827 (Tex. 1961)).

We conclude that the trial court lost plenary power over trial cause number B-199, 953-A after Appellants appealed the default judgment, and the denial of the motion to dismiss under the TCPA from which Appellants’ purport to bring an interlocutory appeal is void for lack of jurisdiction. See id. Because we lack jurisdiction to consider the merits of an appeal from a void judgment, we dismiss the interlocutory appeal (Appellants’ fifth and sixth issues) related to the motion to dismiss under the TCPA. See Martinez, 18 S.W.3d at 847.

Update!

In Roach v. Ingram, 14-16-00790-CV, 14-16-01016-CV, (Tex. App. – Houston [14th] June 5, 2018) the appeals court held in a Texas Anti-SLAPP case that a judgment entered by a trial judge while a stay is in force under Tex. Civ. Prac. & Rem. Code §51.014 is not void but “merely” voidable. To complain to the appeals court about a judgment or order entered while a case is stayed requires a timely objection in the trial court to preserve the complaint. The appeals court found no indication in the record that a timely objection was made. A party’s:

failure to complain about the trial court’s action in rendering a final judgment during the stay waived any error related to the stay.

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