Dismissed and Opinion filed August 30 , 2022.

In The 

## Fourteenth Court of Appeals

NO. 14

- 20

- 00680

- CV

DAVID SHELLER , Appellant

V.
GOLDSTEIN FAUCETT AND PREB EG, LLP; CP WINDUP, LLP F/K/A CLEARMAN PREBEG, LLP; PR EBEG FAUCETT & ABBOTT, LLC; CHRISTO PHER F AUCETT, INDIVIDUALLY; STEPHEN ABBOTT, INDIVIDUALLY; MATTHEW PREBEG, INDIVIDUALLY; NEWTON SCHWARTZ, INDIVIDUALLY; AND NBS ACQUISITIONS CORP. , Appellee s

On Appeal from the 151st District Court

Harris County, Texas Trial Court Cause No. 2016

- 77743

O P I N I O N

In five issues , David Sheller challenges a modified final judgment rendered by the trial court wh ich assess ed mone tar y sanctions against Sheller for his conduct during the course of his representation of Carl Sousa, personal represe ntative of t he
Est ate of Eliz a

beth Betty Jean Wilwerding in an arbitration proc e eding as well as2

in the trial court

. We conclude th e modified final judgment was signed outside of
the t rial court ’s plenary po wer and is void. Therefore , we dismiss this app ea l

. I. B A CKGROU N D
Davi d Shell er represented Sousa in fili ng suit against G oldstein Faucett and
Preb eg, LLP ; CP Windup , LLP f/k/a C lear m an P rebeg, LL P ; Prebeg Faucett &
A bbott, LLC ; C hristopher F aucett, individually; Stephen Abbott, individually ; Ma tthew Prebeg, individua l ly; N e w ton Sch war t z , indiv i dually ; and N BS Acquisitions Corp. (the IP attorneys) in Harris County d istrict court in 2016

. On
the motion of the IP attorneys, the case was r eferred to arbitration pursuant to the contingency

- fee agreem ent b etween Betty Wilwe r ding , Schwar t z , and Goldste i n , Faucett & P rebeg, LL P (the law firm at which Faucett practiced at the ti me) and subsequently ratified by Sousa

. 1
After a lengthy and contentious arbitration proceeding, t he arb itrator issued

an award i n March 2020 which deter mined Sousa did not prove any of her cla i ms again st the I P attorneys an d should take nothing on her c laims. The award al so determined that CP Windup, Schwartz , and NBS Acquisit ions s uccessfully proved
their counter claims against Sousa and assess ed a ttor ney ’ s fee s against Sousa , as wel l as costs a nd expenses pursuant to AAA rules

. The tri al court confirmed the
award on the submission of the parties ’ motions and rendered a fin a l tak e

- nothin g ju dgment on Sousa ’ s claims on May 4, 2 020

. Sousa filed a moti on for new tr ial ( as well as a supp lement a l motion for new trial ) , which t he tr ial court denied less than
two weeks later

.

1 The factual background underlying Sousa ’ s claims is a ddr essed i n det ail i n her appeal of the trial court ’ s final judgment , confirm ing the arbi tratio n a ward. Sousa v. Gol dstein Faucett and Prebeg, LLP, et. al , N o. 14

– 20

– 00 484

– CV (Tex. App.

— Houst o n [14th Dist. ] July 28, 2022 , no pet. h. )

. Sousa is the daughter of Betty Wilwe rding . After Wilwerdi ng ’ s death, Sousa served as the personal represe ntative of her mother ’ s estate.3

On May 29, 2020, the IP attorneys filed a mo tion fo r sanctions asking the
trial court to sanction Sh eller for his repeated and “ extre me ” abu se of the judicial system. The tri a l court granted the IP attorney s ’ motion and signed a n order granting the motion for sanctions a nd rendering a modified fin al judgme nt

. S heller now appeals the modified final judgment

. II. A NA LYSIS
Sheller ar gues on ap peal th at : (1 ) the modified final judgm en t is void
because it violate s the one

- judgment rule; (2) the modified final judgment is void
because it was signed after ple n ary pow er expired; (3) the trial court erre d by
award ing san ctions against Sheller after t he arbi trator refused to award sanction s ; (4) the sa nctions award was not su pported by factually

- and legally

- sufficient evidence; and (5) the trial court ab used its discretion in award ing substantial
sanction s against Sheller “ in the absence of evidence t hat the sanct ions imposed

are no more s ev e re than necessary to satisfy t heir legitimate purpose. ” We begin with Sheller ’s issue 2 because it is dispositive o f our jurisdiction and this appeal

. Though Sousa fi led a moti on for new trial , potentially extendin g plena ry pow er th rough July 18 , 2020 , the trial court de n ied Sousa ’ s motion for new
tri al on May 18 , 2020

. See Tex. R. App. P. 26.1 (a)(1)

. Therefore, the trial cou rt ’ s plenary power ended on June 18 , 2020, unless the IP attorn ey s ’ motion for

san ctions fur ther ex tended plen ary power. See Tex. R. Civ. P. 3 29b (e)

. Because the
motion for sanctions was filed within 30 da y s of the final judgment , it extend ed plenary power only if the motion can be construed as a mo tion to modify within the meaning of Rule 329b (g ). See Tex. R . Civ. P. 329b(g). If it can not be co nst rued

as a motion to modify, plenary power expired before th e trial court signed the

m odif ied final judgment

. Fo r thirty days after signing the judgment, a trial court has plenary power to4

vaca te it, to m odify o r corr ect it , or to grant a new trial. See Tex . R. Civ. P. 329b. If within that time a party files a moti o n for a new trial or a motion to vac ate, modify,

co rrect, or reform the judgment, then the trial court ’ s plenary power is extended f or thirty d ays aft er the last such motion is expressly or imp lic itly overruled. Id

. “ [T] he filing of a motion for new trial , Tex. R. Civ. P. 329b(e), or a motion to modify,

co rrect or reform the judgment, Tex. R. Civ. P. 329b(g), within the initial thirty

- d ay pe rio d extends the t rial court ’ s jurisdiction over its ju dgm ent up to an additional seventy

- five days, depending on whe n or whether the court acts on the
motions. ” Lane Ba nk Equip. C o. v. Smith S. Equip., Inc ., 10 S.W.3d 308, 310 (Tex. 2000) ; see Tex. R. C iv. P. 32 9b (c).

In L ane , the supreme court concluded that a m oti on for sanctions can be
construed to extend plenary power i f that motion , on its face, is a motion to modify , c orrect , or reform the existing judgment within the meaning of Rule 329b(g). 10 S.W .3d at 3 1 2

. T he m ot ion for sancti on s in Lane specifically so ugh t the rend ition of a new final judgment therefore was a m otion to modify the judgment

. Id . at 310. However, the court in Lane considered that a motion for
sanctions that does not seek a s ub stantive change in the judgment should not be
construed as a mo tion to modify within the meanin g of Rule 329b(g). 2 See id

. at 314 ( “ a timely filed postjudgment motion that se eks a substantive change in an existing judgment qualifies as a motion to modify u nder Rul e 329b(g) ”) ; se e also
id. at 319 ( Hec ht, J., concurri ng) ( “ The Court adds, however, that if the motion had not expressly requested a change in the judgment itself, but had merely requested sanctions that could have been imposed by a separate order, the mot ion would not
h ave extended the court ’ s plenary power or th e appellate timetable. ”)

.

2 A judg ment does not have to resolve pending sanction s issues or motions to be final. Lane , 13 S .W.3d at 312.5

This court has previously considered whether a postjudgmen t motion for

sa nction s can be construed as a motion to modify the judgment

. S ee Mann v. Kendall Home Bu ilders Con str. Partners I , Ltd

. , 464 S.W.3d 84, 89 (Tex. Ap p.

— Houston [14th Dist.] 2015, n o p et.) . In Kendall Home Builders , the party seeking
sanctions filed a post

jud gment motion for sanctions that did not include an expli cit request for t he tri al court to render a n ew final jud gment; however, the propo se d
order specifically included relief t hat sought a change in the existing judgment. Id

. at 90. 3 This court concluded that the motion for sanctions could be construed as a motion to modify , although th e a ward of san ctions was ul ti mately reversed, and jud gment was rendered denying sanction s. Id

. a t 97. F ollowing precedent in Lane and Kendall Home Builders , the determinat ion of whether a postjudgment motion
for sanctions can be construed a s a motion to modif y the judgm ent is fact

- spe cific.
Therefor e, we turn to the motion fi led b y the IP attorney s. The IP attorney s ’ motion for sanction s does not specifically request a chan ge or modification to the final judg ment as was requested in Lane . Neither does the
prop osed order submitted with the motion contain relief in the form of a modified judg men t. The IP attorney s ’ proposed order does not seek j udgment with respect to the san ctions as the movan t did in K endall Home Builders

. On its face, there is

no thing incl uded within the motion or the accompanying proposed or der which

3 One of our sister courts ha s also had the opportunity to consider the iss ue. In Cocke v. Elliot , the Thi rd C ourt of A pp eals co ncluded in an memorandum opinion that even though a motion for sanctions did not explicitly request san ctions b e inco rporated in the judgment “this was plain l y the legal ef

fect and gravam en of [ the] motion, whether or not a ppellee s said so, and we reject Cocke’s attempt to elevat e form over substance. ” No. 03

- 12

- 00667

- CV, 2013 WL 4821123, at *7 (Tex. Ap p.

— Aust in Aug . 27, 2013, pet. denied) (mem. op.)

. Cocke do es not appea r t o be consistent with Lane to the ex tent it remove s the require ment th at the motion for
san ction s connect the relief requested to a change in the final judgment in order to be considered a motion to m od ify wi thin the meaning of Rule 329b(g). In any event , C ocke is distinguishable fr om the fact s be fore us as the IP att orney s ’ motion for sanction s does not make clear that the legal effect of their motion was to request a change in the final judgment.6

would suggest tha t the IP attorney s sought a modification to the final judgment

. The IP attorneys argue in respons e th at their motion fo r sanctions did seek a substantive change to the final judgm ent

. Specif ically , the IP attorneys refer to language in t he motion for sanctio ns whi ch st ates : “ M ovant s submit that it is only
fair that Sheller bear the burden of t his award along with his clien t [. ] ” The IP attorney s also point to their proposed order w h ich request s the following relief:

“ David L. Sheller be and her eby is SA NCTIONED and ORDER ED to pay to Defendants the sum of $2,057, 169.41

– w ith, an d/or in li eu of, Plaintiff, for those attorneys ’ f

ees and costs already awarded the Defendant s against Plai ntiff. ” 4

Ci vil Practice a n d Rem edies Code chapter 10 governs s anctions that may be
im posed on a “ person, a party represented by the person, or both ” for filing
frivo lous pleadings and motions

. Tex

. Civ. Prac. & Rem. Code Ann. § 10.004(a).
A san ction may in clude : (1) a directive to the violator to pe rform, or refrain from performing , a n act ; (2) an o rder to pay a penalty to the court ; and (3) an order to pay to the other party the amount of the reasonabl e expenses incurred by the other party because of the f

iling of th e pleading or m otion, including r easonable attorney ’s fees. Id

. § 10 .004( b )

. Because a n award of s anctions might result in a
stand

- alone order or it might re sult in a modification to the fin al judgment , it is important that a motion for sanction s, on its f ace , indicate w hether it seeks a
modification of the fin al judg ment

. Lane , 10 S.W .3d at 3 1 2 , 314. T he langu age reli ed on by the IP attorneys does not, on its fa ce, id entify any substanti ve ch ange that it seeks to make t o the judg ment. The proposed order ac comp anying the

mot ion for sanctions seeks alternative relief in the form of s anctions “ with, and/ or

4 T h e IP at torneys al so cite language f rom th e modified f

ina l judgment signed on July 13, 20 2 0 to support their claim tha t the mo tion for sanctions was a motion to modify the judgment

. Though t he trial court clearly intended to modify the final ju dgme nt , the trial court ’ s intent does not determine wh ether the trial co urt had plenary power to act.7

in lieu of, Plaintiff. ” With out a specific request for the modification of the judgmen t , a stan d

- alone order o f sanctions would address a request that Shell er be
sanctione d “ with ” Sousa , and the legal effect of the motion does not necessitate a
modi fication to the judgment. Therefo r e, we conclude the IP attorneys ’ m otion for
sanctions w as n ot a motion to modif y the judgment within the meaning of Rule 329b(g). Therefore, the mod ified final judgment was signed out side plenar y power and is void.

III. C ONCLUSION
The trial court ’ s signing of the modified final judgment was void

. See Tex. R. Civ. P. 329b(f)

. Although appellate courts do not have jurisdiction to address
the merits of a ppea ls from void or ders or judgments, they do have jurisdiction “to determine that the order or judgment underlying the appeal is void and make appropriate orders based on that de termination.” Freedom Commc ’ ns., Inc. v. Coronado , 372 S.W.3d 621, 623

– 24 (Te x. 2 012)

. 5 We dismi ss this appeal for lack of subject

- matter jurisdiction

.

/s/ Charles A. Spain Justice

P an el consists of Justices Wise, Spai n , and H a ssan

.

5 Mandamus i s proper if a trial court issue s an order beyond its jurisdiction. In re Southwestern Bell Tel. Co. , 35 S.W.3d 602, 605 (Tex. 2000) (per cur iam) (orig. proceedin g) . The trial court may also sign an order declar ing a previous judgment or order to be v oid due to the expiration of plenary power. See Tex. R. Civ. P. 329b(f).