law reinstatement | motion to reinstate | motion for new trial | plenary power | finality of order | nonsuit |
homeowner law | credit and debt law |


TAMMY ELKINS v. BANK OF AMERICA, N.A.; from Dallas County; 5th district (
05-06-00065-CV, 232 SW3d
345, 08-15-07, pet. denied Jun 2008) (Justice Johnson not sitting)(
home equity loan, validity of lien, finality)
(suit for declaration that home equity loan and resulting lien are void because the loan fails to comply with
the home equity loan provisions of the Texas Constitution)

Revival of Summary Judgment and Finality of Reinstatement Order

  In their first issue, the Currys assert the November 30 order did not revive the summary judgment. The
Currys maintain that for the summary judgment to have been revived, the November 30 order had to
specifically reinstate it. Because the November 30 order referenced, but did not specifically reinstate, the
October 18 order dismissing the counterclaim and did not mention the summary judgment, the Currys
argue the case stood as of that date with at most no counterclaims but with their suit still pending. As such,
the Currys maintain, the trial court had jurisdiction to consider its January 2006 motion to modify, correct,
or reform the summary judgment and the March 30 order declaring the loan invalid is the final judgment in
the case. See Fruehauf Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex. 1993) (per curiam) (trial court has
control over its judgment until it becomes final). Because they filed their notice of appeal in January 2006,
two months prior to this judgment, the Currys argue their notice of appeal was “premature.” And, noting the
Bank did not file a notice of appeal in this case, the Currys argue further, this judgment must stand
because no appeal exists that could defeat the judgment. We disagree.   See Footnote 5         
  An order setting aside or vacating a judgment returns the parties to the position they occupied before
rendition of the judgment and leaves the case as if no judgment had been entered. In re J.M.T., 999 S.W.
2d 562, 563 (Tex. App.-Waco 1999, no pet.) (per curiam); P.V. Int'l Corp. v. Turner, 700 S.W.2d 21, 22
(Tex. App.-Dallas 1985, no writ). To ensure parties “are not made to guess what action a trial judge has
taken concerning an order,” courts have held that such an order is not a final judgment unless it also
specifically includes language disposing of all the issues and parties in the case. Wang v. Hsu, 899 S.W.2d
409, 412 (Tex. App.-Houston [14th Dist.] 1995, writ denied); P. V. Int'l, 700 S.W.2d at 22. Likewise, an
order setting aside or vacating an order that set aside or vacated another order leaves the case as if no
judgment had been entered; to be final, it must either specifically dispose of all the issues and parties or
reinstate the prior judgment. Wang, 899 S.W.2d at 412; P.V. Int'l, 700 S.W.2d at 22. When an order sets
aside a judgment, but is otherwise silent, the trial court's jurisdiction to adjudicate the case continues.
Wang, 899 S.W.2d at 412; P.V. Int'l, 700 S.W.2d at 22-23.
  Here, although the November 30 order does not explicitly reinstate the October 18 order dismissing the
Bank's counterclaim and rendering the summary judgment final, neither is it silent. As stated, the
November 30 order “closes” the case “with the final Order to Dismiss Counter-Claims of October 18,
2005.” By closing the case with the October 18 order, which operated not just to dismiss the counterclaims,
but also to render the summary judgment final, the court “closed” the case with both the dismissal of the
counterclaims and the summary judgment. See Jorns, 488 S.W.2d at 408-09; Thompson, 840 S.W.2d at
34. This “closing” indicates finality, which in turn indicates that an “opening” or “revival” occurred. While
the trial court could certainly have preceded the language that it was “closing [the case] with the final
Order to Dismiss Counter-Claims” with language that it was “reinstating” or “reviving” that order, we
conclude the scope of the court's action is readily ascertainable. Compare Consol. Underwriters v.
McCauley, 320 S.W.2d 60, 63 (Tex. Civ. App.-Beaumont 1959, writ ref'd n.r.e) (concluding judgment
setting aside and vacating order of July 3, 1956 that set aside and vacated order of December 5, 1955
was final and revived December 5, 1955 where it further “ordered . . . that final judgment entered in this
cause on December 5, 1955, be, and the same is hereby in all things held to be valid, subsisting and
unsatisfied”) with Wang, 899 S.W.2d at 412 (concluding written notation on November 10, 1993 judgment
itself setting it aside “insufficient” to revive October 14, 1993 judgment because written notation did not
mention October 14 judgment) and P.V. Int'l, 700 S.W.2d at 23 (concluding April 29, 1985 order that set
aside and vacated April 15, 1985 order that set aside December 31, 1984 did not revive December 31,
1984 judgment because April 29 order referenced April 15 order by date only and made no mention of
December 31 judgment). The Currys' contention that the November 30 order at most only reinstated the
order dismissing the Bank's counterclaims is without merit.
  So, too, is their contention that the final judgment in this case is the March 30 order and not the
November 30 order. By closing the case with the October 18 order which both dismissed the counterclaim
and made final the summary judgment, the court disposed of all the parties and issues and rendered final
judgment. It then retained plenary power over the judgment at most for an additional one hundred and five
days, or until March 15, 2006. See Tex. R. Civ. Proc. 329b. The trial court's March 30 order is outside that
period and is void. See State ex rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995) (judicial action
taken after court's jurisdiction over cause has expired is a nullity). We resolve the Curry's first issue
against them and, because the March 30 judgment was entered outside the court's plenary power, vacate
that judgment.