Opinion
01-22-00663-CV
09-17-2024
Jason David Sheedy v. Bruce Fredrick and Cynthia Tilley
458th District Court of Fort Bend County, Trial court case number: 20-DCV-277933
Panel consists of: Justices Goodman, Rivas-Molloy, and Guerra
ORDER
Amparo Monique Guerra, Judge
Appellant, Jason David Sheedy, incarcerated and proceeding pro se, filed a notice of appeal from the trial court's August 23, 2022 order granting the amended motion to dismiss of appellees Bruce Frederick and Cynthia Tilley. On December 7, 2023, the Court affirmed the trial court's order dismissing appellant's claims against appellees. The Court's judgment also issued December 7, 2023. Accordingly, any motion for rehearing or motion for en banc reconsideration was due no later than December 22, 2023. See Tex. R. App. P. 49.1 ("A motion for rehearing may be filed within 15 days after the court of appeals' judgment or order is rendered."), 49.5 (motion for en banc reconsideration "must be filed within the time prescribed by Rule 49.1 for filing a motion for rehearing").
Appellant did not file a motion for rehearing or motion for en banc reconsideration by December 22, 2023, but filed an untimely motion for rehearing on January 4, 2024. However, appellant did not seek any extension of the deadline to file a motion for rehearing. See Tex. R. App. P. 49.9 ("A court of appeals may extend the time for filing a motion for rehearing or en banc reconsideration if a party files a motion complying with Rule 10.5(b) no later than 15 days after the last date for filing the motion."). Accordingly, on August 15, 2024 the Court denied appellant's motion for rehearing.
On August 29, 2024, appellant filed a "Notice of Appeal with Motion for Stay and Abeyance." In his motion, appellant appears to request that the Court reopen this appeal based on "newly discovered evidence and never before seen evidence" which he obtained in the form of "discovery from a different case."
Intermediate appellate courts, such as this Court, retain plenary power over an appeal for a period of: (1) sixty days after its judgment is entered if no timely filed motion for rehearing or motion for en banc reconsideration is filed, or (2) thirty days after the appellate court overrules all timely filed motions for rehearing or motions for en banc reconsideration. See Tex. R. App. P. 19.1. Generally, once an intermediate appellate court's plenary power expires, it lacks jurisdiction, or any authority, to take any action in an appeal. See Nunu v. Risk, 612 S.W.3d 645, 655 (Tex. App.-Houston [14th Dist] 2020, pet. denied) (dismissing appeal for lack of jurisdiction where plenary power of intermediate appellate court expired).
Once an intermediate appellate court's plenary power expires, the appellate court's jurisdiction is limited, and the appellate court may only take those actions specifically identified and prescribed in Rule 19.3 of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 19.3. Notably, none of the permitted post-plenary power bases set forth in rule 19.3 apply here.
As noted above, the Court issued the judgment in this appeal on December 7, 2023 and appellant failed to timely file a motion for rehearing or motion for en banc reconsideration. Accordingly, the Court's plenary power over this appeal expired on February 5, 2024. See Tex. R. App. P. 19.1(b). Stated another way, as of February 5, 2024, this Court has had no jurisdiction, and has lacked any authority, to take any action in this case under any circumstances, except as expressly permitted by Texas Rule of Appellate Procedure 19.3.
Absent plenary power, appellant's "Notice of Appeal with Motion for Stay and Abeyance" must be dismissed for lack of jurisdiction.
It is so ORDERED