Akinwamide v. Transportation Ins. Co.

Court of Appeals of Texas,

Houston (1st Dist.).

Patrick Olajide AKINWAMIDE, Appellant

v.

TRANSPORTATION INSURANCE COMPANY, CNA Insurance Company, & Automatic Data Processing, Inc., Appellees.

No. 01–11–00755–CV.

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Sept. 6, 2012.

On Appeal from the 80th District Court, Harris County, Texas, Trial Court Cause No.1997–48526.

Attorneys & Firms

Patrick Olajide Akinwamide, pro se.

Jeffrey L. Diamond, for Appellees.

Panel consists of Chief Justice KEYES.

MEMORANDUM OPINION

PER CURIAM.

*1 This is an attempted appeal from the denial of a motion to vacate a final judgment signed on August 9, 2000. Because we lack jurisdiction, we dismiss the appeal.

Appellant has filed five appeals, four of which were filed prior to the appeal presently before this Court, all related to two unsuccessful lawsuits to recover on a workers’ compensation claim. Appellant first attempted to appeal an order signed April 26, 1998, which denied appellant’s motion to try his case under the common law in the first lawsuit. Akinwamide v. Transp. Ins. Co., No. 14–06–01054–CV, 2008 WL 660303, at *1 (Tex.App.-Houston [14th Dist.] Mar. 11, 2008, pet. denied). The Fourteenth Court dismissed appellant’s bill of review. Id. at *5.

Appellant’s fifth and present appeal challenges the trial court’s denial of appellant’s motion to vacate the judgment in the first lawsuit.¹ Appellant’s motion to vacate was filed June 21, 2010. This Court is without jurisdiction to review a motion to vacate filed in the trial court after that court’s plenary power has expired. DeGroot v. DeGroot, 260 S.W.3d 658, 662 (Tex.App.-Dallas 2008, no pet.). A trial court’s plenary power may be extended by timely filing an appropriate post-judgment motion within the initial thirty day period, which will extend the time period up to an additional seventy-five days. Id.

Here, the trial court entered its final judgment on August 9, 2000. Appellant’s motion to vacate was filed in the trial court on June 21, 2010, nearly ten years after the final judgment. The trial court’s plenary power to vacate the judgment had therefore expired well before appellant filed his motion to vacate. Appellant himself recognizes in his filings with this Court that the trial court denied the motion to vacate because it was without plenary power to grant such a motion.

*2 On June 13, 2012, the Court notified the parties of its intent to dismiss the appeal for want of jurisdiction unless appellant filed a response demonstrating this court’s jurisdiction. See TEX.R.APP. P. 42.3(a). Appellant filed a response, but it does not show grounds for continuing the appeal.

In his response, appellant contends that the trial court did not have jurisdiction to render the final judgment and therefore the judgment was void and the trial court’s plenary power has not expired. Appellant proceeded to trial on the claims in his original petition regarding an adverse ruling and decision by the Industrial Accident Board of the Texas Workers’ Compensation Commission (IAB). Appellant now asserts that he voluntarily dismissed or non-suited, by way of a first amended original petition which contained alternative pleadings, the claims contained in his original petition, and therefore the trial court’s final judgment which resolved the claims in his original petition was void.

Generally, a judgment must be supported by the pleadings, and if not so supported, is void. Id. at 49–50.

Appellant incorrectly states that his amended petition voluntarily dismissed his appeal of the adverse ruling and decision of the IAB because that claim was omitted from the amended petition. See id. at 49–50. Therefore, the trial court did have jurisdiction to enter the final judgment on August 9, 2000 and did not have plenary power over the judgment when appellant filed his motion to vacate nearly ten years after the judgment was signed.

The trial court’s final judgment is not void and the trial court did not have plenary power over the judgment when appellant filed his motion to vacate. Therefore, we do not have jurisdiction over this appeal.

Accordingly, we dismiss the appeal for want of jurisdiction. See 43.2(f). We dismiss all other pending motions as moot.