Dismissed and Memorandum Opinion filed April 16, 2015.




                                           In The

                        Fourteenth Court of Appeals

                                   NO. 14-14-00197-CV

                         AUBREY R. JEFFERSON, Appellant
                                                V.
                         UNITY NATIONAL BANK, Appellee

                On Appeal from the County Civil Court at Law No. 2
                              Harris County, Texas
                         Trial Court Cause No. 1004469

                     MEMORANDUM                      OPINION


      This is an appeal of an order in which, eighteen months after granting final
summary judgment in this cause, the trial court purported to grant an “amended” final
summary judgment. Because the trial court’s plenary power in this cause expired long
before it signed the amended judgment, we declare the amended order void and we
dismiss this appeal for lack of jurisdiction.
                                     I. BACKGROUND

      Appellee Unity National Bank filed a suit on a note against appellant Aubrey R.
Jefferson. The suit was assigned cause number 1004469, and on May 31, 2012, the trial
court rendered a final summary judgment against Jefferson for the principal due and
owing on the note, together with interest, attorney’s fees, and costs of court. The parties
did not appeal that order.

      On December 10, 2013, the trial court rendered an “amended” summary judgment
against Jefferson in the same cause number. The amended judgment is almost identical
to the original judgment, except that the awards of prejudgment interest and attorney’s
fees are quadrupled. Jefferson has appealed this judgment.

      In the time between these two events, Jefferson filed a separate bill-of-review
proceeding, which was assigned cause number 1019981. In that action, the trial court
signed an order in which it purported to reopen this proceeding, cause number 100469.
The proceeding before us, however, is not an appeal of any order rendered in the bill-of-
review action; it is an appeal only of the amended judgment rendered in the original
cause. Unity contends that the amended judgment is void because it was rendered after
the trial court lost plenary power in this action. Thus, the only issues before us are
(a) whether the trial court had jurisdiction to enter the “amended” summary judgment
being appealed, and if so, (b) whether the trial court reversibly erred in failing to sustain
Jefferson’s objections to the summary-judgment evidence or in granting the summary
judgment.

                                       II. ANALYSIS

      Where, as here, a party contends that a judgment is void, our first inquiry must be
to determine whether the challenged judgment is void or merely voidable. See PNS
Stores, Inc. v. Rivera, 379 S.W.3d 267, 272 n.8 (Tex. 2012). Here, the challenged


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judgment was rendered in cause number 1004469, a case in which the trial court had
long since rendered final judgment. A trial court may change its final judgment while it
retains plenary power. See Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d
308, 310 (Tex. 2000). Thus, to determine whether the second judgment is void or
merely voidable, we must determine whether the trial court still had plenary power
when it rendered a second judgment in the same cause number.

       Absent a timely post-judgment motion extending the trial court’s plenary power,
the trial court retains jurisdiction over a case for thirty days after the final judgment is
signed. See TEX. R. CIV. P. 329b(d). If an appropriate post-judgment motion is filed
within that time, then the trial court’s plenary power is extended for thirty days after the
motion is overruled by a signed order or by operation of law. See TEX. R. CIV. P.
329b(e). If the trial court fails to sign an order ruling on the motion within seventy-five
days after the judgment was signed, then the motion is overruled by operation of law.
See TEX. R. CIV. P. 329b(c). Thus, if an appropriate post-judgment motion was filed but
was not granted, then the trial court’s jurisdiction could extend for as much as 105 days
after the final judgment was signed.

       It is undisputed that in cause number 1044669, the trial court signed its “first”
final judgment on May 31, 2012, and no party timely filed a post-judgment motion. The
trial court accordingly lost plenary power over this cause on June 30, 2012.

       After the trial court’s plenary power expires, it cannot substantively modify the
judgment except by a bill of review. TEX. R. CIV. P. 329b(f).1 A bill of review,
however, is an independent proceeding. Tice v. City of Pasadena, 767 S.W.2d 700, 702
(Tex. 1989) (citing Schwartz v. Jefferson, 520 S.W.2d 881, 889 (Tex. 1975) (orig.


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         Even after its plenary power has expired, the trial court may sign a judgment nunc pro tunc to
correct a clerical error, and it may declare a judgment void if it was signed after the trial court’s
plenary power expired. See TEX. R. CIV. P. 329b(f).

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proceeding)); see Amanda v. Montgomery, 877 S.W.2d 482, 485 (Tex. App.—Houston
[1st Dist.] 1994, orig. proceeding) (holding that trial court’s refusal to order severance
of bill of review from underlying case was an abuse of discretion warranting mandamus
relief). And although the record before us shows that Jefferson did file a separate bill-
of-review action, this is not an appeal from that proceeding; it is an appeal from the
amended judgment rendered in the original suit. As Unity points out in its response
brief, the trial court’s plenary power in the original suit expired long before it rendered
an amended judgment. See TEX. R. CIV. P. 329b.

      A judgment in which the trial court attempts to substantively alter a final
judgment after its plenary power has expired is void. See Tex. Dep’t of Transp. v. A.P.I.
Pipe & Supply, LLC, 397 S.W.3d 162, 168 & n.21 (Tex. 2013) (holding that a second
judgment was void because it substantively altered the first judgment 351 days after the
first judgment was rendered). An appellate court has no jurisdiction to review the
merits of a void judgment. See Waite v. Waite, 150 S.W.3d 797, 800 (Tex. App.—
Houston [14th Dist.] 2004, pet. denied). Because the trial court rendered the amended
judgment in this cause after its plenary power expired, it is void, and we cannot review
the remaining issues. See id.

      We therefore declare the amended judgment of December 10, 2013 void, and
dismiss the appeal. See State ex rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995)
(per curiam). In doing so, we note an important difference in the facts of this case and
those of a case that Unity describes as “nearly identical” to it.       In State v. 1985
Chevrolet Pick-Up Truck, VIN: 1GCEK14H1FS165672, the owners of two vehicles
filed bills of review to challenge the final judgment in a forfeiture action. See 763
S.W.2d 484, 485 (Tex. App.—Beaumont 1988) (“1985 Chevrolet I”), rev’d sub nom.
State v. 1985 Chevrolet Pickup Truck, VIN: 1GCEK14HLFS165672, 778 S.W.2d 463
(Tex. 1989) (per curiam) (sub. op.) (“1985 Chevrolet II”). After the bills of review were

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erroneously “redocketed” into the original cause, the trial court purported to grant them
and rendered an “amended judgment.” Id. As a result of the redocketing, all of the
orders in connection with the bill of review were rendered in the underlying cause after
the trial court had lost plenary power. See 1985 Chevy II, 778 S.W.2d at 465. On
review, the Texas Supreme Court (a) vacated all of the orders rendered after the trial
court’s plenary power expired, (b) reinstated the original judgment, and (c) remanded
the case for the trial court to reconsider the bills of review. See id. This case differs
from the 1985 Chevrolet case in that here, the bill-of-review proceeding was not simply
redocketed into the original suit; it retained its separate existence, and the orders
rendered in that proceeding are not properly before us for review. We accordingly
dispose only of the case before us, and we express no opinion about the propriety or
effect of the trial court’s orders in the separate bill-of-review proceeding.

                                     III. CONCLUSION

      Because the trial court lacked plenary power to render the amended judgment in
cause number 1004469, we declare the amended judgment void. We dismiss this appeal
without reaching Jefferson’s remaining issues.




                                        /s/       Tracy Christopher
                                                  Justice



Panel consists of Justices Christopher, Donovan, and Wise.




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