Southwestern Bell Mobile Systems, Inc. v. Franco, Odilia

NUMBER 13-99-186-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI ___________________________________________________________________ SOUTHWESTERN BELL MOBILE SYSTEMS, INC. , Appellant, v. ODILIA FRANCO , Appellee. ___________________________________________________________________ On appeal from the 214th District Court of Nueces County, Texas. ____________________________________________________________________ O P I N I O N Before Chief Justice Seerden and Justices Chavez and Rodriguez Opinion by Justice Rodriguez Southwestern Bell Mobile Systems, Inc. (SBMS), appeals from an enforcement order reinstating Odilia Franco to her position with SBMS, and ordering SBMS to pay Franco's salary from January 15, 1995, until the date of her reinstatement. We reverse and remand with instructions for the trial court to vacate its void order. Franco sued SBMS after she was discharged, allegedly in retaliation for complaining of sexual harassment. A trial court rendered judgment in favor of Franco on April 3, 1995, awarding her damages in tort and ordering SBMS to "reinstate Odilia Franco effective January 15, 1995, to the position of collection representative in Corpus Christi, Texas at a salary of $16,973.00." The judgment was eventually appealed to the Texas Supreme Court, which reversed the award of damages, but affirmed the portion of the judgment ordering SBMS to reinstate Franco. Southwestern Bell Mobile Systems, Inc. v. Franco, 971 S.W.2d 52, 53 (Tex. 1998). No supersedeas bond was posted by SBMS during the pendency of this original appeal. On February 2, 1999, Franco filed a motion to enforce the judgment. According to the motion, she returned to work on October 9, 1998. Franco requested pay due from January 15, 1995, the date ordered in the judgment, to October 9, 1998, the date of actual reinstatement. The court held a hearing on the motion on February 19, 1999. On March 12, 1999, the trial court entered an order granting Franco's motion to enforce the judgment, which ordered SBMS to reinstate Franco and to pay her $16,973.00 per year from January 15, 1995 until the date of reinstatement. We must address unassigned jurisdictional error. A trial court's lack of jurisdiction over the subject matter is fundamental error. Rogers v. Clinton, 794 S.W.2d 9, 11 (Tex. 1990) (orig. proceeding); Coleman v. Sitel Corp., 21 S.W.3d 411, 413 (Tex. App.--San Antonio 2000, no pet.). Lack of subject matter jurisdiction "must be noted and reviewed by the appellate court at any time it appears." W. Wendell Hall, Standards of Review in Texas, 29 St. Mary's L.J. 351, 373 (1998); see also Coleman, 21 S.W.3d at 413. A trial court retains the inherent power to enforce its judgments. Arndt v. Farris, 633 S.W.2d 497, 499 (Tex.1982); cf. Tex. R. Civ. P. 308 ("the court shall cause its judgments and decrees to be carried into execution"). A trial court does not, however, have authority to modify a judgment after the expiration of its plenary power. See Tex. R. Civ. P. 329b. Rule 329b (d) of the Texas Rules of Civil Procedure provides that a trial court, "regardless of whether an appeal has been perfected, has plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment until thirty days after all such timely-filed motions are overruled, either by a written and signed order or by operation of law, whichever occurs first." Tex. R. Civ. P. 329(b). In this case, the trial court modified the 1995 judgment by its 1999 order awarding front pay after the expiration of the court's plenary power. Front pay has been defined as "an affirmative order designed to compensate the plaintiff for economic losses that have not occurred as of the date of the court decree, but that may occur as the plaintiff works towards his or her rightful place." Sellers v. Delgado Community College, 839 F.2d 1132, 1141 (5th Cir.1988); see Stanley Stores, Inc. v. Chavana, 909 S.W.2d 554, 561 (Tex. App.--Corpus Christi 1995, pet. denied) ("[f]ront pay has been characterized as an extension of a defendant's back pay liability until the employer makes an offer of reinstatement") (citing Johnson v. Chappel Hill Indep. Sch. Dist., 853 F.2d 375, 383 (5th Cir. 1998)); Wal-Mart Stores, Inc. v. Davis, 979 S.W.2d 30, 45 (Tex. App.--Austin 1998, pet. denied) (front pay refers to future lost earnings) (citing Borg-Warner Protective Services Corp. v. Flores, 955 S.W.2d 861, 867 (Tex. App.--Corpus Christi 1997, no pet.), and Hansard v. Pepsi-Cola Metro. Bottling Co., 865 F.2d 1461, 1469 (5th Cir.), cert. denied, 493 U.S. 842 (1989)) (emphasis added). Black's Law Dictionary defines front wages as a "[t]ype of prospective compensation paid to a victim of job discrimination without harm to incumbent employees until the victim achieves the position that he would have attained but for the illegal and discriminatory act." Black's Law Dictionary 461 (6th ed. 1990) (emphasis added). To recover front pay, a plaintiff must show that reinstatement is not feasible as a remedy. Hansard, 865 F.2d at 1469. Front pay is available as equitable relief in lieu of reinstatement. Cox & Smith, Inc. v. Cook, 974 S.W.2d 217, 227 (Tex. App.--San Antonio 1998, pet. denied) (citing City of Austin v. Gifford, 824 S.W.2d 735, 743-44 (Tex. App.--Austin 1992, no writ)). Here, the court rendered judgment on April 3, 1995, ordering SBMS to reinstate Franco effective January 15, 1995, to the position of collection representative at a salary of $16,973.00. Because the 1995 judgment ordered Franco reinstated retroactively at a specified salary, it necessarily included back pay until the date of the judgment. The judgment did not, however, include a prospective award of pay from the date of the judgment until the date of reinstatement. Indeed, by awarding reinstatement in the 1995 judgment, the trial court necessarily elected not to award front pay. See id. The trial court's 1999 order awarding Franco pay from the date of the 1995 judgment until the date of reinstatement was a prospective award of damages from the date of the original judgment. Consequently, the court's 1999 order modified the 1995 judgment. The court lacked jurisdiction to modify the 1995 judgment, as the 1999 order was well after the expiration of its plenary power. Once a trial court's plenary power has expired, it has no jurisdiction to modify or change its original judgment except by bill of review. Moore v. Brown, 993 S.W.2d 871, 874 (Tex. App.--Fort Worth 1999, pet. denied); Ex parte Balazik, 631 S.W.2d 198, 200 (Tex. App.--Fort Worth 1982, no writ). An order modifying a judgment after the expiration of the trial court's plenary power is void. Lundy v. Lundy, 973 S.W.2d 687, 688 (Tex. App.--Tyler 1998, pet. denied) ("[A] court may not set aside or alter a judgment after the expiration of its plenary power, and an[y] order attempting to do so is void."). Because of the disposition of this issue, we need not address SBMS's issues. Tex. R. App. P. 47.1. Accordingly, we REVERSE the judgment of the trial court and REMAND the cause with instructions for the trial court to vacate its void order. NELDA V. RODRIGUEZ Justice Do not publish. Tex. R. App. P. 47.3. Opinion delivered and filed this the 30th day of November, 2000.