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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