Order entered October 30, 2018




                                             In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                      No. 05-18-00613-CV

      ENVISION REALTY GROUP, LLC AND JACKSON POTTER, AND THEIR
            ATTORNEY DAVID J. POTTER, Appellants/Cross-Appellees

                                                V.

                        CHUAN C. CHEN, Appellee/Cross-Appellant

                      On Appeal from the 134th Judicial District Court
                                   Dallas County, Texas
                          Trial Court Cause No. DC-17-16534-G

                                            ORDER
                 Before Chief Justice Wright, Justice Evans, and Justice Brown

       This appeal challenges three trial court orders: (1) the February 7, 2018 order granting

appellee’s rule 91a motion to dismiss, see TEX. R. CIV. P. 91a; (2) the March 26, 2018 order

denying appellants’ motion to set aside the February 7th order of dismissal; and (3) the May 3,

2018 order on appellee’s motion for additional attorney’s fees, costs and sanctions. The cross-

appeal also challenges the May 3rd order. At issue is our jurisdiction over the May 3rd order.

       Because the order appeared to have been signed outside the trial court’s plenary power

and appeared void, we directed the parties to file jurisdictional letter briefs. See Freedom

Commc’ns, Inc. v. Coronado, 372 S.W.3d 621, 623 (Tex. 2012) (per curiam) (appellate courts

lack jurisdiction to address merits of appeals from void orders); Malone v. Hampton, 182 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.”). The parties complied. Appellants agree the order is void. Appellee disagrees.

         Generally, a trial court’s plenary power expires thirty days after it signs the final

judgment or order, that is, a judgment or order that disposes of all pending claims and parties in

the record. See TEX. R. CIV. P. 329b(d); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.

2001). When a motion seeking a substantive change in the judgment is filed within thirty days of

the judgment, the trial court’s plenary power expires thirty days after the motion is overruled by

signed order or 105 days if the motion is overruled by operation of law, whichever occurs first.1

See TEX. R. CIV. P. 329b(e); Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 314

(Tex. 2000).

         The record here reflects the trial court’s February 7th order is final. See Lehmann, 39

S.W.3d at 195. The order grants appellee’s motion to dismiss “in all respects” and recites as

follows:

         1.       Cause Number DC-17-16534-134 is DISMISSED, With Prejudice as it
                  is not premised on a cognizable legal theory.

         2.       Plaintiffs Envision Realty Group, LLC Jackson Potter and their counsel …
                  shall be jointly and severally responsible for reasonable attorney fees and
                  costs in the amount of $12,664.50 made payable to . . .

The record further reflects appellants filed their motion to set aside the February 7 th order timely,

on March 7, 2018. See TEX. R. CIV. P. 329b(a). That motion was overruled by signed order

March 26th, extending the trial court’s plenary power to April 25th. See TEX. R. CIV. P. 329b(e).




1
 A motion that seeks a substantive change in the judgment is overruled by operation of law if it is not determined by
written order signed within seventy-five days of judgment. See TEX. R. CIV. P. 329b(c).
The May 3rd order, signed outside the trial court’s plenary power, is therefore void. See Malone,

182 S.W.3d at 468.

       In disagreeing that the May 3rd order is void, appellee argues the February 7th order is not

final because “there is no language disposing of the entire case.” She notes the May 3rd order

states it is a “final judgment disposing of all parties and all claims including attorney’s fee claims

and is “inten[ded] to completely dispose of the entire case.” Further, appellee argues “[r]ule 91a

necessitates or otherwise requires the award of attorney fees in all associated proceedings,” and

because the proceedings continued after the February 7th order was signed, the dismissal order

could not be final. In that regard, she notes she filed a motion for additional attorney’s fees and

costs April 5, 2018, for the period following the February 7th order through March 26th.

       A final judgment does not have to be in any particular form. See Lehmann, 39 S.W.3d at

195. Generally, when a judgment is issued without a conventional trial, it is final if it disposes of

all claims and parties, regardless of its language. See id. at 192. Although rule 91a requires a

trial court award the prevailing party “all costs and reasonable and necessary attorney fees

incurred with respect to the challenged cause of action in the trial court,” see TEX. R. CIV. P.

91a.7, this requirement does not render the February 7th order not final. The trial court retained

plenary power to award additional fees and costs under rule 91a until its plenary power expired

on April 25th.

       On the record before us, we VACATE the May 3rd order, DISMISS the appeal as to that

order, and DISMISS the cross-appeal. See TEX. R. APP. P. 42.3(a). In dismissing the cross-

appeal, we deny appellee’s request to allow her, if the May 3rd order is void, to amend her cross-

appeal to challenge the March 26th order for failure to award attorney’s fees under rule 91a. A
notice of cross-appeal as to that order was due no later than June 6, 2018.2 See TEX. R. APP. P.

26.1(d). Appellee did not file her notice of cross-appeal until July 27, 2018.

        We note the reporter has informed the Court she has not filed the record because no

payment arrangements have been made for its preparation. Accordingly, we ORDER appellants

to file, within ten days, written verification they have paid or made arrangements to pay the

reporter’s fee. We caution that failure to file the requested verification may result in the appeal

being submitted without the reporter’s record. See id. 37.3(c).




                                                             /s/      DAVID EVANS
                                                                      JUSTICE




2
  Appellants filed their notice of appeal May 23, 2018, during the fifteen-day extension period allowed under Texas
Rule of Appellate Procedure 26.3. See TEX. R. APP. P. 26.3. The notice of appeal was deemed timely filed for
jurisdiction purposes by order of June 22, 2018.
