Summary
holding trial court's order denying appellant's motion for new trial and motion to reconsider the granting of a plea to the jurisdiction not independently appealable
Summary of this case from Hydro v. JalinOpinion
No. 04-04-00797-CV
Delivered and Filed: January 12, 2005.
Appeal from the 408th Judicial District Court, Bexar County, Texas, Trial Court No. 2004-CI-07021, Honorable Martha Tanner, Judge Presiding.
Dismissed for Lack of Jurisdiction.
Sitting: Alma L. LÓPEZ, Chief, Justice, Catherine STONE, Justice and Sarah B. DUNCAN, Justice.
MEMORANDUM OPINION
The appellant filed the underlying lawsuit against five defendants. On August 18, 2004, the trial court entered an order granting the motion to dismiss filed by the appellees, who were two of the defendants, based on immunity grounds. No judgment has been entered with regard to the remaining three defendants. Appellant filed a notice of appeal seeking to appeal the trial court's order dismissing the appellees on November 4, 2004. The appellees filed a motion to dismiss contending that the appellant's notice of appeal was untimely filed since the trial court's order was interlocutory and the notice of appeal was required to be filed within twenty days of the trial court's order. See Tex.R.App.P. 26.1(b), 28.1. The appellant responded that the trial court's order denying her motion for new trial and motion for reconsideration clarified the trial court's first order, thereby restarting the deadline for filing the notice of appeal.
The trial court's order denying the motion for new trial and motion for reconsideration did not modify the trial court's judgment, and filing a motion for new trial does not extend the time for perfecting an appeal of an interlocutory order. See Tex.R.App.P. 28.1. Although the trial court's order was appealable, see Tex. Civ. Prac. Rem Code Ann. § 51.014(a)(8) (Vernon Supp. 2004-05), the order was interlocutory, and appellant was required to file the notice of appeal by September 7, 2004. Because appellant did not file the notice of appeal until November 4, 2004, the notice of appeal was untimely filed. See Tex.R.App.P. 26.1(b). Appellees' motion to dismiss is granted, and this appeal is dismissed for lack of jurisdiction.