Figueroa v. Davis (Tex.App.- Houston [1st Dist.] Apr. 2, 2009)(Radack)
(untimely post-judgment motion,
motion for new trial filed too late, plenary power not extended, untimely
notice of appeal, no deadline extension for appellate due dates, DWOJ)
DISMISS APPEAL: Opinion by Chief
Justice Radack   
Before Chief Justice Radack, Justices Alcala and Hanks
01-07-01109-CV  Maria C. Figueroa v. Edgar Davis  
Appeal from County Civil Court at Law No 2 of Harris County
Trial Court
Judge: Hon. Jacqueline Lucci Smith

MEMORANDUM OPINION

Appellant, Maria C. Figueroa, appeals from a judgment in favor of appellee, Edgar Davis, who sued
Figueroa for personal injuries after an automobile collision. We dismiss the appeal for lack of
jurisdiction because appellant did not timely perfect her appeal.

PROCEDURAL BACKGROUND

Davis sued Figueroa on December 2, 2002, claiming personal injury and property damages arising
from an automobile collision on July 27, 2002. A jury found appellant negligent, but awarded Davis
only $575.00 for damage to his vehicle and $163.13 in prejudgment interest. The trial court signed a
judgment on that verdict on November 10, 2006. On January 12, 2007, the trial court granted
Davis's timely filed motion for new trial, in which he challenged the jury's award of zero damages. A
second jury trial on September 6, 2007 resulted in an award of $42,482.78 in damages to Davis for
physical pain, mental anguish, disfigurement, and medical care and $14,091.30 in prejudgment
interest. The trial court signed a new judgment on September 25, 2007.

On November 5, 2007, Figueroa challenged the September 25, 2007 judgment by filing a motion to
modify, motion for new trial, and motion for remittur in which she argued that (1) the evidence was
legally and factually insufficient to support the jury's award of damages, (2) there was no evidence of
medical causation linking Davis's injuries to the car collision, and (3) the trial court erred in
calculating the amount of prejudgment interest. On December 6, 2007, the trial court signed an
order denying the multiple relief requested by Figueroa's motion. On the same date, the trial court
signed a new judgment that reduced the amount of prejudgment interest in the September 25, 2007
judgment from $14,091.30 to $14,005.83. Figueroa filed her notice of appeal on December 26,
2007.

Late Notice of Appeal

Davis questions the timeliness of Figueroa's notice of appeal, and Figueroa responds to that
challenge in her brief. A timely filed notice of appeal is essential to invoke this Court's jurisdiction.
(1) See Tex. R. App. P. 25.1. If Figueroa did not timely perfect her appeal by filing a timely notice of
appeal, this Court has no jurisdiction over her appeal. See id. To be timely, a notice of appeal must
be filed within 30 days after a judgment is signed after a jury trial, unless any party files a motion for
new trial or a motion to modify the judgment. Tex. R. App. P. 26.1(a)(1)-(2). (2)

It is undisputed that the trial court signed the judgment on September 25, 2007 and that the
judgment was a final judgment. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 198 (Tex. 2001)
(stating that a judgment "rendered and entered in a case regularly set for [a] conventional trial on the
merits . . . will be presumed for appeal purposes that the Court intended to, and did, dispose of all
parties legally before it and of all issues made by the pleadings"). Accordingly, Figueroa had 30
days, or until October 25, 2007, to file either (1) her notice of appeal or (2) a motion that would
extend her deadline to file her notice of appeal. See Tex. R. App. P. 26.1(a)(1)-(2).

Figueroa did not timely file her notice of appeal by October 25, 2007. Though she filed a combined
motion for new trial and to modify the September 25, 2007 judgment, which motion would ordinarily
have extended her deadline to file her notice of appeal, Figueroa did not file that motion until
November 5, 2007, or eleven days too late. See Tex. R. Civ. P. 324, 329b(a); L.M. Healthcare, Inc.
v. Childs, 929 S.W.2d 442, 444 (Tex. 1996) (stating that motion for new trial or to modify judgment
must be filed within 30 days from date trial court signs judgment).

A trial court has plenary power over its judgment until it becomes final. Fruehauf Corp. v. Carrillo,
848 S.W.2d 83, 84 (Tex. 1993). "
Plenary power" refers to the period of time in which a trial court
may vacate its judgment by granting a new trial, or in which it may modify or correct its judgment.
See Tex. R. Civ. P. 329b(d)-(f); In re Gillespie, 124 S.W.3d 699, 702 (Tex. App.--Houston [14th
Dist.] 2003, orig. proceeding). A rule 329b motion for new trial or to modify, correct, or reform the
judgment, or a motion that has the same effect, is the only means by which a party may extend the
appellate timetable and the trial court's plenary power over its judgment. Lane Bank Equip. Co. v. S.
Equip., Inc., 10 S.W.3d 308, 313 (Tex. 2000); In re T.G., 68 S.W.3d 171, 176 (Tex. App.--Houston
[1st Dist.] 2002, pet. denied).

The trial court retains plenary power for only 30 days by operation of rule 329b unless a party files an
appropriate motion to extend the trial court's plenary power. See Tex. R. Civ. P. 329b(d)
("[R]egardless of whether an appeal has been perfected," trial court retains "plenary power to grant
a new trial or to vacate, modify, correct, or reform the judgment within thirty days after the judgment
is signed."). The trial court's plenary power expires on the 30th day after the judgment, therefore,
unless a party timely seeks relief contemplated by rule 329b(d). To be timely, therefore, and result in
a continuation of the trial court's plenary power, a motion filed to extend the trial court's plenary
power must be filed by the 30th day after the trial court signs the judgment. See L.M. Healthcare,
929 S.W.2d at 444; In re T.G., 68 S.W.3d at 176. A motion for new trial is not timely if it is filed, as
here, more than 30 days after the trial court signs the final judgment. Moritz v. Preiss, 121 S.W.3d
715, 720 (Tex. 2003).

In this case, the trial court's plenary power over the September 25, 2007 judgment extended 30
days or to October 25, 2007. See Tex. R. Civ. P. 329b(d). Figueroa filed a motion that, if timely,
would have extended the trial court's plenary power, but she did not file the motion until November 5,
2007, when the trial court's plenary power to rule on that motion had already expired. Action taken
by the trial court after it loses plenary power is void. See, e.g., State ex rel. Latty v. Owens, 907
S.W.2d 484, 485 (Tex. 1995) ("Judicial action taken after the court's jurisdiction over a cause has
expired is a nullity."); In re Office of Attorney General, 264 S.W.3d 800, 809 (Tex. App.--Houston [1st
Dist.) 2008) (orig. proceeding).

Two consequences result from the failure of any party to file a timely motion that would have
extended the trial court's plenary power by October 25, 2007. First, the
trial court's plenary power
expired on October 25, 2007. See id. Accordingly, the trial court's December 6, 2007 judgment is
void. Second, Figueroa had to file her notice of appeal by October 25, 2007 in order to perfect her
appeal on a timely basis and thus vest jurisdiction in this Court. See Tex. R. App. P 25.1,
26.1(a)(1)-(2). Figueroa did not file her notice of appeal until December 26, 2007, however, and
thus too late. Because Figueroa did not timely perfect her appeal, this Court has no jurisdiction over
the appeal and must dismiss.

Conclusion

We dismiss the appeal for lack of jurisdiction.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Alcala and Hanks.

1. The issue of our jurisdiction having been raised by the parties, there is no need for notice to the
parties, as provided by rule 42.3 of the Rules of Appellate Procedure. See Tex. r. App. P. 42.3.

2. Rule 26.3 of the Rules of Appellate Procedure authorizes this Court to extend the deadline to file
a notice of appeal if, within 15 days after the deadline for filing notice, the appellant (1) files a notice
of appeal in the trial court and (2) files a motion, in compliance with rule 10.5(b) of the Rules of
Appellate Procedure, to request an extension of time to file the notice of appeal. Tex. R. App. P.
26.3, 10.5(b). Figueroa did not seek relief from this Court under rule 26.3.