Florance v. State

• Decision Date: 30 November 2011
• Docket Number: No. 05–10–01653–CV.,05–10–01653–CV.
• Citation: 352 S.W.3d 867
• Parties: Richard John FLORANCE, Jr., Appellant, v. The STATE of Texas and Brenda Taylor, Appellees.
• Court: Texas Court of Appeals

352 S.W.3d 867

Richard John FLORANCE, Jr., Appellant,

v.The STATE of Texas and Brenda Taylor, Appellees.

No. 05–10–01653–CV.

Court of Appeals of Texas, Dallas.

Oct. 27, 2011.Rehearing Overruled Nov. 30, 2011.

Richard John Florance, Jr., Richardson, TX, pro se.

Robert Davis, Matthews, Stein, Shiels, Pearce, Knott, Eden & Davis, Dallas, TX, Demetri Anastasiadis, Assistant Attorney General, Austin, TX, for Appellees.

Before Justices MORRIS, O'NEILL, and FILLMORE.

OPINION

Opinion By Justice FILLMORE.

Richard John Florance, Jr. appeals from the trial court's dismissal of a petition for bill of review. In sixteen issues, Florance generally argues the trial court erred by dismissing the petition for bill of review, by denying Florance's motion to recuse the trial judge, and by granting Brenda Taylor's motion to declare Florance a vexatious litigant. Because Florance failed to timely file a notice of appeal, we do not reach any of Florance's sixteen issues. We dismiss this appeal for lack of jurisdiction.

Procedural Background

On December 15, 2005, Florance filed “Florance's First Notice of Lien” in the Collin County records purporting to create a lien for $129 against the property of Taylor, who was at the time the Collin County Clerk. Pursuant to section 51.903 of the government code, Taylor filed a “Motion for Judicial Review of Documentation or Instrument Purporting to Create Lien or Claim.” See Tex. Gov't Code Ann. § 51.903 (West 2005). The trial court considered Taylor's motion without a hearing and without notice to Florance. See id. § 51.903(c). On July 13, 2006, the trial court signed findings of fact and conclusions of law determining that “Florance's First Notice of Lien” was fraudulent as defined by section 51.901(c) of the government code. See id. § 51.901(c).¹ Florance appealed, and this Court affirmed the trial court's order. See In re A Purported Lien or Claim Against Collin County Clerk Brenda Taylor, 219 S.W.3d 620 (Tex.App.-Dallas 2007, pet. denied).

On June 9, 2010, Florance filed this bill of review proceeding against the State of Texas and Taylor alleging the trial court's findings of fact and conclusions of law in the previous litigation were void due to lack of notice and, because he had exhausted all legal remedies, he was now entitled to equitable relief. Florance requested the clerk serve both the State, through the governor, and Taylor.

On July 2, 2010, the State filed an “Advisory to the Court of Absence of Jurisdiction.” In the advisory, the State asserted the trial court lacked in personam and subject matter jurisdiction over the State based on sovereign immunity, improper service, and the failure of the petition for bill of review to state a claim. On July 6, 2010, the trial court dismissed Florance's “Petition for Bill of Review” based on the “absence of jurisdiction in this Court” (the July 6 order).

On July 16, 2010, Florance filed an amended petition for bill or review. Florance requested the State be served with the amended petition through the secretary of state, but did not request that Taylor be served with the amended petition. On August 3, 2010, the State filed a plea to the jurisdiction, asserting the amended petition did not state any facts that would support a waiver of the State's sovereign immunity and did not state a claim under the circumstances presented. On August 5, 2010, the trial court dismissed Florance's “Petition for Bill of Review” based on the “absence of subject matter jurisdiction in this Court” (the August 5 order). On September 2, 2010, Taylor filed a plea to the jurisdiction and a motion to declare Florance a vexatious litigant under chapter 11 of the civil practice and remedies code. See Tex. Civ. Prac. & Rem.Code Ann. §§ 11.001–.104 (West 2002).

On September 28, 2010, Florance filed (1) a motion to recuse the trial judge, (2) a motion to disqualify Taylor's trial counsel, and (3) a motion for “delay sanctions.” The trial judge referred the motion to recuse to the administrative judge and, on October 1, 2010, the administrative judge denied the motion. On October 6, 2010, Florance filed an “Affidavit of Manifest Irregularities” stating that he had not received notice of either the July 6 order or the August 5 order. On October 12, 2010, Florance filed a motion under rule of civil procedure 306a(5) requesting a finding that he did not receive notice of either the July 6 order or the August 5 order within twenty days of each order being signed. In the motion, Florance stated the August 5 order was referenced in Taylor's plea to the jurisdiction and he had actual knowledge of that order “on or about 4 September” when he was served with Taylor's pleading. Florance alleged he was never served with the August 5 order and, on October 5, 2010, contacted the district clerk about that order. During the conversation, the clerk told Florance about the July 6 order and emailed Florance a copy of the July 6 order.

On October 14, 2010, the trial court declared Florance a vexatious litigant and granted Taylor's plea to the jurisdiction. The record does not contain a ruling on Florance's rule 306a motion. On October 25, 2010, Florance filed a request for findings of fact and conclusions of law relating to the July 6 order. Florance filed a motion for new trial on November 5, 2010, an amended motion for new trial on November 16, 2010, and a notice of past due findings of fact and conclusions of law on November 22, 2010. Florance filed a notice of appeal on December 28, 2010. The trial court denied Florance's motion for new trial on December 29, 2010.

We requested the parties file letter briefs on the issue of whether this Court has jurisdiction over this appeal. We specifically requested the parties brief whether either the July 6 order or the August 5 order was a final order for purposes of starting the appellate timetable and whether any postjudgment motion had the effect of extending the trial court's plenary power. Taylor filed a brief arguing Florance failed to file a timely notice of appeal and, therefore, this Court does not have jurisdiction over this appeal.² Florance filed a brief asserting this Court has jurisdiction over this appeal because, pursuant to rule of civil procedure 306a, the “effective date” for the July 6 order was October 5, 2010 and the plenary power of the trial court was extended by Florance filing a request for findings of fact and conclusions of law relating to that order. Florance also contends that rule 306a violates the due process rights of a litigant who does not receive notice of judgment within ninety days. Finally, in the alternative, Florance argues the trial court possibly intended to dismiss only the claims against the State and, therefore, neither the July 6 order nor the August 5 order was a final order.

Jurisdiction

Appellate jurisdiction is never presumed. Brashear v. Victoria Gardens of McKinney, L.L.C., 302 S.W.3d 542, 546 (Tex.App.-Dallas 2009, no pet.). Unless the record affirmatively shows the propriety of appellate jurisdiction, we must dismiss. Id. When the appellant has not filed in the trial court a timely motion for new trial, motion to modify the judgment, motion to reinstate, or request for findings of fact and conclusions of law, the notice of appeal must generally be filed within thirty days after the judgment or other appealable order is signed. Tex.R.App. P. 26.1(a). Without a timely filed notice of appeal, this Court lacks jurisdiction. See Tex.R.App. P. 25.1(b); In re E.M.A., No. 05–11–00596–CV, 2011 WL 3672297, at *1 (Tex.App.-Dallas Aug. 23, 2011, no pet. h.) (per curiam) (mem. op.).

Finality of Dismissal Orders

Unless a statute specifically authorizes an interlocutory appeal, appellate courts have jurisdiction over final judgments only. Lehmann v. Har–Con Corp., 39 S.W.3d 191, 195 (Tex.2001). When there has not been a conventional trial on the merits, an order or judgment is not final for the purposes of appeal unless it actually disposes of all parties and all claims pending in the case or it states with “unmistakable clarity” that it is a final judgment as to all claims and all parties. Id. at 192–93, 205. An order dismissing the case “shows finality if there are no other claims by other parties.” Id. at 205; see also Ritzell v. Espeche, 87 S.W.3d 536, 538 (Tex.2002) (per curiam). If the language of the order expressly disposes of all claims and all parties, “the order is final and appealable, even though the record does not provide an adequate basis for the rendition of judgment.” Lehmann, 39 S.W.3d at 200.

In this case, the July 6 order dismissed all of Florance's pending claims and neither the State nor Taylor had pleaded any independent claims for affirmative relief. Therefore, the July 6 order was a final, appealable order. See id. at 192–93, 205.

When a trial court renders a final judgment, a party then files an amended petition, and the trial court renders a second final judgment based upon the amended petition, two distinct cases under the identical cause number result. Leach v. Brown, 156 Tex. 66, 292 S.W.2d 329, 331 (1956) (amended petition filed after final judgment in same cause number sufficient to invoke trial court's jurisdiction); Cockrell v. Cent. Sav. & Loan Ass'n, 788 S.W.2d 221, 224 (Tex.App.-Dallas 1990, no writ) (per curiam); see also Walker v. Walker, 152 S.W.3d 220, 223 (Tex.App.-Dallas 2005, no pet.). Florance filed his amended petition after the trial court rendered a final judgment, and the trial court rendered a second judgment based on the amended petition. Therefore, we have two distinct cases under the same cause number. The August 5 order disposed of all claims raised by Florance in his amended petition for bill of review. Further, the State had no pending claims for affirmative relief at the time of the dismissal and Taylor had not been served with the amended petition for bill of review. Accordingly, the August 5 order was also a final judgment. Se...