Opinion
No. 06-08-00040-CV
Date Submitted: July 17, 2008.
Date Decided: July 18, 2008.
On Appeal from the 62nd Judicial District Court Hopkins County, Texas, Trial Court No. CV36520.
Before MORRISS, C.J., CARTER and MOSELEY, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Coy Lynn Owens and Linda Owens have filed notices of appeal specifying that they appeal from the trial court's judgment signed October 29, 2007. Coy E. Owens, appellee, has filed a motion to dismiss for want of jurisdiction, claiming that the notice of appeal was untimely. In determining our jurisdiction, we have been provided with the following information by the district clerk (and in one instance by appellant, Coy Lynn Owens):
The notices of appeal state the judgment was signed October 31, 2007; that was the date the judgment was filed by the district clerk. The critical date for purposes of determining our jurisdiction is the date of signing of the judgment — which was October 29, 2007.
October 29, 2007 Judgment signed
November 28, 2007 Judgment Nunc Pro Tunc signed
December 13, 2007 Joint Motion for New Trial Filed (specifying judgment nunc pro tunc signed November 28, 2007)
December 28, 2007 (Judgment furnished by appellant indicating signing date of December 28, 2007). No judgment containing this date is in the records of the district clerk. This document is an exact duplicate as to content of the previous Judgment Nunc Pro Tunc, and was file-marked on the same date as that judgment (November 28, 2007). It is marked as a "Copy" and shows a December 28, rather than a November 28, date of signing.
March 28, 2008 Coy Owens' Notice of Appeal (specifying an appeal from judgment signed October 31, 2007)
March 31, 2008 Linda Owens' Notice of Appeal (specifying an appeal from judgment signed October 31, 2007)
April 10, 2008 Linda Owens' First Amended Notice of Appeal (specifying an appeal from judgment signed October 31, 2007)
April 10, 2008 Coy Owens' First Amended Notice of Appeal (specifying an appeal from judgment signed October 31, 2007)
In this case, although the November 28 document is entitled as a judgment nunc pro tunc, because it was signed while the trial court retained plenary power over its judgment, it is actually a modified judgment, which serves as a new judgment replacing the older one, and thus all appellate timetables are calculated from the date of its signing. See Tex. R. Civ. P. 329b(d); Mathes v. Kelton, 569 S.W.2d 876, 878 (Tex. 1978); In re R.W., No. 06-06-00106-CV, 2006 Tex. App. LEXIS 10084 (Tex.App.-Texarkana Nov. 22, 2006, no pet.); Hopper v. Cade, No. 2-14-292-CV, 2005 Tex. App. LEXIS 7816 (Tex.App.-Fort Worth Sept. 22, 2005, no pet.); Ferguson v. Naylor, 860 S.W.2d 123, 126 (Tex.App.-Amarillo 1993, writ denied).
In order to perfect an appeal to this Court from the November 28 judgment, the appellants were required to file a notice of appeal within ninety days of that date, on or before February 26, 2008. See Tex. R. App. P. 26.1. The rule also provides a fifteen-day grace period, which would have expired March 12. The notices of appeal of the two appellants were filed on March 28 and March 31, respectively. They were untimely, and neither could serve to invoke the jurisdiction of this Court.
Coy Lynn Owens also filed a motion to extend time to file notice of appeal, but it is likewise dated well after the expiration of the fifteen-day grace period.
Appellants also state there is yet another judgment nunc pro tunc signed December 28, 2007 (a date within the plenary power period of the trial court) and they have attached a copy of that purported judgment to their response to the appellee's motion to dismiss. That document was file-stamped on the same day and minute as the judgment found in the official records of the court.
If this were a valid judgment, it would serve to bring the appellate timetable forward and make the appeal timely — but only if there were a pleading such as a motion for new trial filed which would serve to extend the appellate timetable from thirty to ninety days.
The motion for new trial filed December 13 was directed explicitly at the November 28 judgment nunc pro tunc. While a motion for new trial generally operates to extend the timetable for filing a notice of appeal from the judgment that it assails, a motion for new trial or reconsideration that has been granted cannot assail a subsequent judgment and therefore cannot extend the timetable for filing a notice of appeal from the subsequent judgment. Tex. R. App. P. 26.1, 27.2; Tex. R. Civ. P. 306c. Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559 (Tex. 2005). The rule provides that "No motion for new trial . . . shall be held ineffective because prematurely filed; but every such motion shall be deemed to have been filed on the date of but subsequent to the time of signing of the judgment the motion assails. . . ."
This motion for new trial does not assail the judgment of December 28. Therefore, even assuming that it was a valid new modified judgment, the appellate timetable would not be extended from thirty to ninety days from the indicated date of signing of the purported December 28 judgment, and if we treat the notices of appeal as applying to a judgment on that date, they are not timely.
See Reitmeyer v. Clawson, 634 S.W.2d 379 (Tex.App.-Austin 1982, no writ); Poulter v. Poulter, 565 S.W.2d 107 (Tex.Civ.App.-Tyler 1978, no writ); Bryan v. Gen. Elec. Credit Corp., 553 S.W.2d 415 (Tex.Civ.App.-Houston [1st Dist.] 1977, no writ); Home Fund, Inc. v. Denton Fed. Sav. Loan Ass'n, 485 S.W.2d 845 (Tex.Civ.App.-Fort Worth 1972, no writ).
Therefore, even if the purported December 28 (modified or nunc pro tunc) judgment were part of the official records of the court, the appellate timetables were not extended by the prior filing of a motion for new trial directed at the preceding judgment.
Under either scenario, we have no jurisdiction over this appeal. There being no timely notice of appeal from the original judgment, or the modified judgment of November 28, or from the purported additional modified judgment of December 28, we dismiss this appeal for want of jurisdiction.