Bass v. Bass

• Decision Date: 01 May 2003
• Docket Number: No. 01-01-00995-CV.,No. 01-01-00996-CV.,01-01-00995-CV.,01-01-00996-CV.
• Citation: 106 S.W.3d 311
• Parties: John F. BASS, Appellant, v. Rebecca D. BASS, Appellee.
• Court: Texas Court of Appeals

106 S.W.3d 311

John F. BASS, Appellant, v. Rebecca D. BASS, Appellee.

No. 01-01-00995-CV.

No. 01-01-00996-CV.

Court of Appeals of Texas, Houston (1st Dist.).

May 1, 2003.

Shawn Casey, Shawn Casey & Associates, Houston, for Appellant.

Michael D. Tracton, Sugar Land, Irwin Michael Danziger, Rosenberg, and G. Scott Williams, Law Office of G. Scott Williams, Houston, for Appellee.

Panel consists of Justices TAFT, ALCALA and MIRABAL.^*

OPINION

TIM TAFT, Justice.

These are interlocutory appeals that relate to an appeal decided by this Court on June 6, 2002 under Cause No. 01-00-00745-CV.

In Cause No. 01-00-00995-CV, appellant, John F. Bass (Husband), asks us to dissolve a temporary injunction.¹ The injunction concerned assets of Husband and was entered on the motion of appellee, Rebecca D. Bass (Wife), but while Husband's appeal of their final, default decree of divorce was still pending before this Court, although under a new trial-court cause number that differs from that decree. Husband's three issues challenge the validity of the temporary injunction. Husband claims this Court retained exclusive jurisdiction over the property of the marital estate, despite Wife's having sought relief under a new cause number, and also claims the trial court erred by not requiring Wife to post a bond because she and Husband were no longer married when she requested injunctive relief. We declare the temporary injunction void and dismiss the appeal in Cause No. 01-01-00995-CV.

In Cause No. 01-01-00996-CV, Husband asks us to vacate an order granting Wife's motion to appoint a receiver.² This order was also entered while Husband's appeal of their final, default decree of divorce was still pending in this Court, but under a new trial-court cause number that differs from that decree. Husband challenges the receivership by two issues. He contends the trial court had no jurisdiction to appoint a receiver over assets encompassed by the decree currently on appeal before this Court and therefore erred by denying Husband's motion to dismiss the newly filed cause. We declare the order appointing a receiver void and dismiss the appeal in Cause No. 01-01-00996-CV.

Background

The trial court signed a final, default decree of divorce on December 21, 1999. This decree dissolved the marriage between Husband and Wife and divided the property of their marital estate by awarding virtually all of the marital estate to Wife. In addition, Wife was awarded substantial damages for her tort claims.

With respect to the division of the property of the marital estate, the decree contained the following provisions for funds awarded Wife that had been held in Husband's name:

W-4. All funds in the name of JOHN F. BASS including funds on deposit, together with accrued but unpaid interest, in banks, savings institutions, or other financial institutions, which are subject to JOHN F. BASS's sole control.

. . .

The decree also contained a concluding "default" paragraph with respect to the marital estate:

IT IS ORDERED AND DECREED that any assets of the parties not awarded or divided by this Final Decree of Divorce are subject to future division as provided by the Texas Family Code.

No postjudgment motions were filed following this decree.

On June 13, 2000, just short of six months after the trial court signed the final, default decree, Husband timely perfected an appeal by filing a notice of restricted appeal. We docketed Husband's restricted appeal under Cause No. 01-00-00745-CV, styled John F. Bass, appellant v. Rebecca D. Bass, appellee.

On July 5, 2001, our initial opinion and judgment issued in Cause No. 01-00-00745-CV. We held that Husband had established error on the face of the record in, his restricted appeal of the final, default decree of divorce, due to his inability to obtain a reporter's record of the evidence submitted to the trial court in support of Wife's claims for unliquidated damages. Consistent with this holding, we reversed the final, default decree of divorce and remanded the cause for a new trial. On July 20, 2001, Wife moved for rehearing of Cause No. 01-00-00745-CV, claiming, in part, that we erred by reversing the portion of that decree that dissolved her marriage to Husband.

On August 28, 2001, while her motion for rehearing of Cause No. 01-00-00745-CV was still pending in this Court, Wife filed an "Original Petition to Enjoin Community Assets" in the trial court. Although filed under a new number, Cause No. 01-CV-120459, the petition retained the style of the original divorce petition, i.e., In the Matter of the Marriage of Rebecca D. Bass and John F. Bass. Wife requested temporary and permanent injunctive relief pertaining to assets and property of Husband described as Cayman Island accounts, identified by specific account and portfolio numbers, and real property described as four different condominium units in Puerto Aventuras, Quintana Roo, Mexico. On the same day, Wife filed an "Emergency Ex Parte Motion for Appointment of Receiver" to take charge of and manage the same accounts and property.

On August 29, 2001, the trial court conducted a hearing on Wife's petition and signed a temporary restraining order granting the requested relief. On September 7, 2001, the trial court signed an additional order that denied Husband's motion to dismiss for lack of jurisdiction, in which he claimed the pendency of Cause No. 01-01-00745-CV in this Court deprived the trial court of jurisdiction to grant relief to Wife.

After conducting an additional hearing on September 11, 2001, the trial court signed an order, dated the next day, which granted Wife's request for temporary orders and enjoined Husband's access to the property and accounts identified in Wife's petition. The same order denied Husband's plea in bar or, alternatively, motion to dismiss for lack of jurisdiction. Husband filed his notice of interlocutory appeal from that order three days later.

On September 18, 2001, Wife filed an emergency, ex parte motion asking the trial court to reconsider appointing a receiver. The trial court granted this motion the same day and signed a corrected order for ex parte appointment of receiver the next day. Husband filed his notice of appeal from that order on October 1, 2001.

On June 6, 2002, we issued our opinion on Wife's motion for rehearing in Cause No. 01-00-00745-CV. We concluded we erred by reversing the portion of the final, default decree of divorce that dissolved Husband's and Wife's marriage, but again concluded that Husband had otherwise demonstrated error on the face of the record in his restricted appeal, and therefore reversed the remainder of the final, default decree of divorce and remanded the cause.

Trial Court's Jurisdiction to Enter September 12 and 19, 2001 Orders

In his appeals from the temporary injunction and from the order appointing a receiver, Husband's first issue challenges the trial court's jurisdiction to order either relief. Husband contends the trial court lacked jurisdiction because this Court retained plenary power over Husband's and Wife's marital assets, in that Husband's restricted appeal from the final, default decree, which affected those assets, was still pending in this Court when Wife sought the relief awarded by the September 12 and 19, 2001 orders. Husband further contends Wife did not defeat this Court's plenary power over the assets of her and Husband's marital estate by requesting relief under a new cause number.

A. Plenary Power

1. The Trial Court's Plenary Power — Expired on January 20, 2000

If no party to a judgment files a motion that extends the trial court's plenary power, the trial court loses plenary power over the judgment 30 days after the judgment is signed. TEX.R. CIV. P. 329b(d), (e); TEX. R.APP. P. 26.1(a)(1),(3); Bd. of Trustees v. Toungate, 958 S.W.2d 365, 367 (Tex.1997). No postjudgment motions were filed after the trial court signed the final, default decree of divorce that dissolved the marriage between Husband and Wife and divided the property of their marital estate. Accordingly, the trial court lost plenary power over that decree on the thirtieth day after December 21, 1999, specifically, on January 20, 2000. See id. On June 13, 2000, Husband timely perfected his appeal from that decree by filing a notice of restricted appeal.

2. This Court's Plenary Power — Acquired on June 13, 2000

A court of appeals acquires appellate jurisdiction over all parties to the judgment or order challenged once any party perfects an appeal by filing a notice of appeal. TEX.R.APP. P. 25.1(b). This Court acquired jurisdiction over trial-court Cause No. 99,675 on June 13, 2000, under appellate Cause No. 01-01-00745-CV, when Husband filed his notice of restricted appeal.

A court of appeals retains plenary power over the cause for 60 days after issuing its judgment, unless a party timely files a motion for rehearing or motion to extend time to file a motion for rehearing. See TEX.R.APP. P. 19.1. This Court's plenary power over trial-court Cause No. 99,675 continued when Wife timely filed her motion for rehearing of this Court's opinion of July 5, 2001 in appellate Cause No. 01-01-00745-CV. A court of appeals continues to retain plenary power over a cause for 30 days after all timely filed motions for rehearing or motions to extend time to file motions for rehearing are overruled. See id. If, in deciding a motion for rehearing, a court of appeals modifies or vacates its prior judgment, or issues a new judgment, or issues an opinion overruling a motion for rehearing, a party may file a further motion for rehearing. TEX.R.APP. P. 49.5; see Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 458 (Tex.1992).

Our opinion on motion for rehearing, issued in Cause No. 01-00-745-CV on June 6, 2002, vacated our opinion and judgment of July 5, 2001 and issued a new opinion and judgment, thus triggering a new deadline for purposes of rule 19. See TEX.R.APP. P. 49.5; 19.1; cf. Rodriguez v....