law-notice-of-appeal-appellate-deadline | notice of appeal | motion for new trial | post-judgment motions
motion for extension of time to file notice of appeal | dismissal for want of appellate jurisdiction (DWOJ)
See TEX. R. APP. P. 26.1(a) (“[T]he notice of appeal must be filed within 90 days after the judgment is
signed if any party timely files . . . a motion for new trial . . . .”) (emphasis added). Otherwise 30 days.
A motion for extension of time is necessarily implied when an appellant, acting in good faith, files a
notice of appeal beyond the time allowed by Rule 26.1, but within the fifteen-day grace period provided
by Rule 26.3 for filing a motion for extension of time. See Verburgt v. Dorner, 959 S.W.2d 615, 617-18
(1997) (construing the predecessor to Rule 26).
APPELLATE DEADLINE - UNTIMELY NOTICE OF APPEAL
DISMISSAL FOR WANT OF JURISDICTION
Hendrix v. Bryant (pdf) (Tex.App.- Houston [1st Dist.] Mar. 4, 2010)(per curiam)
(untimely notice of appeal; no motion for extension for additional 15 days)
DISMISSED: Per Curiam
Before Justices Frost, Boyce and Sullivan
14-09-00897-CV Jake Hendrix v. Cheryl Bryant
Appeal from 247th District Court of Harris County
Trial Court Judge: Judge Bonnie Crane Hellums
Guetersloh v. Guetersloh (Tex.App. - Houston [14th Dist.] Sep. 17, 2009)(per curiam)
(untimely notice of appeal)
DISMISSED 9/17: Per Curiam
Before Justices Brock Yates, Frost and Brown
14-09-00314-CV Michael Fred Guetersloh, Jr. v. James Graig Guetersloh
Appeal from 151st District Court of Harris County
Deadline for Interlocutory Appeal Missed
Because appellant appeals from an interlocutory order, her notice of appeal was due on May 7, 2008. See Tex.
R. App. P. 26.1(b), 28.1(a), (b) (providing that notice of appeal is due 20 days after signing of interlocutory
order being appealed); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001) (holding that order or
judgment is interlocutory unless it actually disposes of every pending claim and party or unless it clearly and
unequivocally states that it finally disposes of all claims and parties). Appellant filed her notice of appeal on
January 6, 2009—almost eight months after the due date—stating therein that “[t]his is timely in that the lack of
jurisdiction can be appealed at any time.” This pronouncement is a misstatement of the law.
Siddiqui v. Unlimited Asset Recovery, Inc. (Tex.App.- Houston [1st Dist.] Nov. 19, 2009)(Sharp)
(credit card debt suit, transfer from JP court to county court, notice of appeal not timely, interlocutory appeal not
DISMISS APPEAL 11/19: Opinion by Justice Sharp
Before Justices Jennings, Higley and Sharp
01-09-00026-CV Iram Siddiqui v. Unlimited Asset Recovery, Inc.
Appeal from County Civil Court at Law No 4 of Harris County
Trial Court Judge: Hon. Roberta A. Lloyd
While true that a lack of jurisdiction is fundamental error that does not need to be preserved and may be raised
for the first time on appeal, see Denton County v. Huther, 43 S.W.3d 665, 667 n.2 (Tex. App.—Fort Worth
2001, no pet.), this does not mean that a person may appeal the trial court’s lack of subject matter jurisdiction
“at any time.” Appellant confuses the time for lodging one’s complaint regarding want of jurisdiction with the
timeline for filing an appeal. Her reading would change the deadline to appeal a jurisdictional defect to “at any
time she feels like it.” One seeking to appeal a particular ruling of a trial court must file her notice of appeal
within the applicable time period prescribed by the Texas Rules of Appellate Procedure in order for the
appellate court to be vested with jurisdiction to review the complained-of ruling. See Tex. R. App. P. 25.1(b).
Without a timely filed notice of appeal, an appellate court has no jurisdiction to consider any complaint, even a
complaint that the trial court had no subject matter jurisdiction over the case. Id.; see also Huther, 43 S.W.3d at
667 n.2 (noting that appellate court has no jurisdiction to address any issue, even contention of lack of subject
matter jurisdiction, in absence of timely notice of appeal). In the present case, because appellant’s notice of
appeal to this Court was untimely, we have not been vested with jurisdiction over her appeal. See Tex. R. App.
P. 25.1(b); Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 564 (Tex. 2005) (holding that, because
notice of appeal was untimely, court of appeals lacked jurisdiction over appeal; dismissing appeal for want of
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)
Figueroa v. Davis (Tex.App.- Houston [1st Dist.] Apr. 2, 2009)(Radack) (untimley motion for new trial, notice of
appeal, dismissal for lack of jurisdiction, DWOJ)
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.
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
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.
Martin v. Martin (Tex.App.- Houston [1st Dist.] Jun. 25, 2009)(Opinion by Bland)
(untimely notice of appeal in SAPCR modification action, attempted appeal dismissed for lack of jurisdiction)
DISMISS APPEAL: Opinion by Justice Bland
Panel members: Justices Keyes, Hanks and Bland
01-09-00136-CV Mayuko Saeki Martin v. Timothy E. Martin
Appeal from 328th District Court of Fort Bend County
Mayuko had to file any motion for new trial or, in the absence of such motion, a notice of appeal, within
30 days of the July 28, 2004 order, or by August 30, 2004. See Tex. R. Civ. P. 329b(a); Tex. R. App.
P. 26.1. Her subsequent motions to modify do not reinstate the timetable for seeking appellate review
of the trial court’s 2004 order, which stems from an earlier motion. Accordingly, her notice is untimely,
and we lack jurisdiction over the appeal.
We therefore dismiss the appeal for want of jurisdiction. We also deny Timothy’s request for
sanctions. All other pending motions are dismissed as moot.
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