Opinion
No. 05-10-00346-CV
Opinion Filed June 15, 2010.
On Appeal from the County Court at Law No. 4, Collin County, Texas, Trial Court Cause No. 004-3550-07.
Before Chief Justice WRIGHT and Justices O'NEILL and MYERS.
MEMORANDUM OPINION
On April 13, 2010, the Court sent a letter to appellant questioning this Court's jurisdiction over this appeal. We explained that it appeared the notice of appeal was untimely. The trial court signed the judgment on December 4, 2009. Appellant timely filed a request for findings of fact and conclusions of law on December 17, 2009. That request extended the deadline for filing the notice of appeal to March 4, 2010. See Tex. R. App. P. 26.1(a)(4). The trial court signed an amended judgment on March 4, 2010. The trial court's plenary jurisdiction expired on Monday, January 4, 2010. The amended judgment was void because it was signed after the trial court's period of plenary jurisdiction had expired. See State ex rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995) (per curiam). Appellant filed its notice of appeal on March 24, 2010. We requested that appellant file a jurisdictional brief explaining how this Court has jurisdiction over the appeal. Appellant filed a letter brief. Appellee did not file a responsive letter brief.
The request for findings of fact and conclusions of law did not extend the trial court's plenary jurisdiction beyond thirty days of signing the judgment. See Lane Bank Equip. Co. v. Smith Southern Equip., Inc., 10 S.W.3d 308, 313 (Tex. 2000) (only motion seeking substantive change extends trial court's plenary power).
The Court has reviewed appellants' jurisdictional letter brief. A notice of appeal must be timely filed with the trial court clerk and must be served on all parties to the trial court's judgment. Tex. R. App. P. 25.1(a) (e). Appellant contends that it notified the trial court of its intent to appeal through its letter to the court reporter at Bryant Reporting and Video in Paris, Texas mailed on November 19, 2009. Appellant attached a copy of this letter for our review. Appellant stated the following in that letter:
Enclosed please find a check in the amount of $835.00 to pay for the preparation of a court reporter's record of the trial of the above-referenced matter, consisting of the transcript of the trial and copies of the trial exhibits to be used in an appeal of the court's judgment.
There is no indication that the letter was sent to or received by the trial court clerk. The supreme court has held that a notice of appeal must be a separate paper filed with the trial court clerk so that a judgment holder is not required to search other papers to determine whether an appeal has been perfected. See Texas Animal Health Comm'n v. Nunley, 598 S.W.2d 233 (Tex. 1980); City of Irving v. Lesley, 601 S.W.2d 742, 743 (Tex.Civ.App.-Dallas, 1980, no writ). The letter relied upon by appellant was not a separate paper, was not copied to the other party, and, more importantly, was not filed with the clerk of the trial court. Appellant also contends that filing the request for findings of fact and conclusions of law sufficiently notified the trial court of its intent to appeal. We disagree. Rule of appellate procedure 25.1 requires a notice of appeal to be a separate filing. Appellant cites no authority that a judgment holder is to assume that a request for findings of fact and conclusions of law evidences a party's intent to pursue an appeal.
Appellant also argues that by signing the amended judgment on March 4, 2010, the trial court induced appellant's counsel to believe that the deadline to file a notice of appeal had been extended. The trial court had no authority to sign the amended judgment on that date. Appellant's notice of appeal was due on March 4, 2010 and the trial court's erroneous action did not change that deadline. We conclude that appellant did not file a timely notice of appeal with the trial court. Accordingly, we dismiss this appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a).