## Facts

- Marie A. Merkel and Rupert M. Pollard were married.
- In 1992, Merkel filed for divorce.
- The trial court signed a final decree of divorce on January 30, 1996, granting the divorce and dividing the community estate.
- Pollard appealed, challenging the property division (not the divorce), and the court of appeals reversed and remanded the case in its entirety because the judgment was based on a repudiated mediated settlement agreement.
- On remand, after further proceedings including a jury trial, the trial court signed an amended final decree of divorce on May 7, 2001.
- Pollard appealed again, and the court of appeals reversed and remanded the case in its entirety because the trial court abused its discretion by denying Pollard’s motion to disqualify Merkel’s attorney.
- Before the case could proceed again on remand, Merkel died in October 2004.
- The divorce trial court (and Pollard) were not notified of Merkel’s death; meanwhile, an estate proceeding was opened, and Merkel’s son, Matthew R. Pollard, was appointed independent executor in February 2005.
- Still unaware of Merkel’s death, the divorce trial court signed an order on February 23, 2005 dismissing “the case” for want of prosecution.
- No party timely appealed the dismissal for want of prosecution or filed a timely motion to reinstate or otherwise set it aside.
- In August 2007, Pollard moved to vacate the 2005 dismissal for want of prosecution and asked the trial court to dismiss the divorce action for lack of jurisdiction based on Merkel’s death.
- The executor opposed the motion, contending the divorce itself had already been granted and that only property-division issues remained after the prior remands.
- The trial court granted Pollard’s request, vacated the 2005 dismissal for want of prosecution, and dismissed the divorce action for lack of jurisdiction.
- The executor appealed from the order dismissing for lack of jurisdiction.

## Issues

1. Whether the court of appeals had appellate jurisdiction to review the later order dismissing for lack of jurisdiction when the case had already been finally dismissed for want of prosecution and no timely appeal or postjudgment motion was filed from that dismissal.

## Decision

- The court of appeals dismissed the executor’s appeal for lack of jurisdiction.
- The February 23, 2005 dismissal for want of prosecution was a final, appealable order disposing of the case then pending.
- Because no timely motion or appeal challenged that dismissal, the trial court’s plenary power expired, and the dismissal became final.
- After plenary power expired, the trial court could not vacate the 2005 dismissal and enter a new dismissal order that would restart appellate timetables.
- As a result, the later order purporting to vacate the dismissal for want of prosecution and dismiss for lack of jurisdiction did not supply an appealable basis for appellate review.
- The court did not reach the merits of the executor’s argument about whether Merkel’s death affected the trial court’s authority to address divorce-related property issues after remand.

## Legal Principles

- An order dismissing a case for want of prosecution can be a final, appealable judgment when it dismisses the entire case.
- If no timely postjudgment motion is filed, a trial court’s plenary power generally expires 30 days after signing a final judgment.
- After plenary power expires, a trial court generally lacks authority to set aside its final judgment and substitute a different final disposition.
- Appellate courts have jurisdiction only when an appeal is timely perfected from a valid, appealable order; later orders entered after plenary power expires do not extend deadlines or create appellate jurisdiction.

## Conclusion

Because the divorce action was finally disposed of by the unappealed February 23, 2005 dismissal for want of prosecution, the trial court’s later order vacating that dismissal and dismissing for lack of jurisdiction could not create a new, timely appealable judgment, so the court of appeals dismissed the executor’s appeal for lack of jurisdiction.


Pollard v. Pollard, 316 S.W.3d 246 (2010)