law-notice-of-appeal-appellate-deadline | timeliness of notice of appeal | appellate timetable | deadline for
filing notice of appeal | perfecting the appeal | invoking the court of appeals' jurisdiction | How much time to
decide whether to appeal? | 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)
In Re Thompson (Tex.App.- Houston [14th Dist.] Jul. 23, 2009)(mandamus petition re: forwarding of notice
of appeal mooted by docketing of appeal)
DISMISSED: Per Curiam
Before Justices Anderson, Guzman and Boyce
14-09-00604-CV In re Lawrence Edward Thompson
Appeal from 152nd District Court of Harris County
Trial Court Judge: Hon. Robert Schaffer
LATE, UNTIMELY NOTICE OF APPEAL --> 15 day Extension of Time to appeal
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.
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. 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).
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)
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.
WHO MAY / MUST FILE THE NOTICE OF APPEAL?
Warwick Towers Council of Co-Owners v. Park Warwick LP, No. 07-0384 (Tex. Jan 25, 2008)(per curiam)
(insurance law, sufficiency, effectiveness of notice of appeal in insured's name)(reversing court of
appeals)WARWICK TOWERS COUNCIL OF CO-OWNERS, BY AND THROUGH ST. PAUL FIRE & MARINE
INSURANCE COMPANY v. PARK WARWICK, L.P., PARK WARWICK INVESTMENTS, L.L.C., AND PARK
HOTEL INVESTMENTS, L.L.C.; from Harris County; 14th district (14-05-00254-CV, 218 S.W.3d 149,
01-11-2007)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without
hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that
court.
Warwick Towers Council of Co-Owners v. Sydow (Tex.App.- Houston [14th Dist.] Jan. 11, 2007, pet.
granted)(Edelman)(insurance law, appellate procedure, sufficiency of notice of appeal)
AFFIRMED: Opinion by Justice Edelman
Before Justices Hudson, Edelman and Seymore
14-05-00254-CV Warwick Towers Council of Co-Owners v. Michael D. Sydow Et Al
Appeal from 113th District Court of Harris County
Dissenting Opinion by Justice Seymore
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