Michael Gowan v. Texas Department of Criminal Justice, et al--Appeal from 202nd District Court of Bowie County

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State: Texas

Court: Texas Northern District Court

Docket No: 06-02-00087-CV

Case Date: 11/13/2002

Plaintiff: Plainview Motels, Inc., d/b/a Surplus Sales

Defendant: Philip Reynolds and wife, Lucy Reynolds, Individually and as Next Friend and Natural Guardian of Di

Preview:Michael Gowan v. Texas Department of Criminal Justice, et al--Appeal from 202nd District Court of Bowie County
In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-02-00087-CV ______________________________ MICHAEL GOWAN, Appellant V. TEXAS DEPARTMENT OF CRIMINAL JUSTICE, ET AL., Appellees On Appeal from the 202nd Judicial District Court Bowie County, Texas Trial Court No. 00C1133-202 Before Morriss, C.J., Grant and Ross, JJ. Opinion by Chief Justice Morriss OPINION Michael Gowan appeals the dismissal of his suit against the Texas Department of Criminal Justice (TDCJ), "David Dean: Officer Doe: [and] Captain Scott." Because this appeal duplicates another appeal docketed in this Court, we dismiss the appeal. Gowan, an inmate in the TDCJ, sued the defendants alleging they lost his property when he was moved from the Terrell Unit to the Telford Unit. Gowan alleged a cause of action under the Texas Theft Liability Act, alleged the defendants denied him access to the courts, and alleged the defendants retaliated against him for filing a grievance. The TDCJ and Dean moved to dismiss Gowan's suit as frivolous under Tex. Civ. Prac. & Rem. Code Ann. 14.003 (Vernon Supp. 2002). On May 14, 2002, the trial court dismissed the suit as frivolous. On May 30, 2002, Gowan filed a notice of appeal. On June 12, 2002, the defendants filed a motion to reform the judgment, alleging their motion to dismiss challenged some, but not all, of Gowan's claims. On June 18, 2002, the trial court issued another order of dismissal limited to certain specific claims. On June 24, 2002, the trial court issued an order vacating its May 14 order dismissing Gowan's suit. On June 26, 2002, the trial court issued another order of dismissal, which essentially mirrored its May 14 order. On July 17, 2002, Gowan filed another notice of appeal, which was docketed in this Court as cause number 06-02-00156-CV. Under Rule 26.1(a), a party must file a notice of appeal within thirty days of when the trial court signs the judgment. Tex. R. App. P. 26.1(a). Therefore, Gowan's May 30 notice of appeal was timely as to the trial court's May 14 order of dismissal. Under Rule 329b, a party must file a motion to reform the judgment within thirty days of when the trial court signs the judgment, and such timely filed motion extends the trial court's plenary power for one hundred and five days after the trial court signs the judgment. Tex. R. Civ. P. 329b(a), (c), (e), (g). Therefore, Gowan's June 12 motion to reform the judgment was timely as to the trial court's May 14 order of dismissal, and each of the trial court's following orders was made within its plenary power: (1) its June 18 order of dismissal, which reformed its May 14 order of dismissal; (2) its June 24 order vacating its May 14 order of dismissal (though the June 24 order was unnecessary in light of its June 18 order of dismissal); and (3) its June 26 order of dismissal. Gowan's July 17 notice of appeal was timely as to the trial court's June 26 order of dismissal, but it was also

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unnecessary. Under Rule 27.1(a), Gowan's May 30 notice of appeal is effective as to the June 26 order of dismissal and is deemed filed on that day, but after the trial court signed the order. See Tex. R. App. P. 27.1(a). Further, the June 27 order of dismissal, like the May 14 order of dismissal, is a final judgment, as it purports to dispose of all claims and all parties. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001). It appears, therefore, that both this appeal and the appeal docketed in this Court as cause number 06-02-00156-CV pertain to the same subject. Insofar as the records in both appeals are identical and Gowan's brief has been filed in cause number 06-02-00156-CV, we conclude this appeal should be dismissed. The appeal is dismissed.

Josh R. Morriss, III Chief Justice

Date Submitted: November 12, 2002 Date Decided: November 13, 2002

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