NAOMI VALDEZ v. TONY EUGENE HAMILTON AND PAULYSSA HAMILTON (2017)

MEMORANDUM OPINION

Concluding that appellant filed her notice of appeal beyond the deadline for invoking this court's jurisdiction over the trial court's judgment, we dismiss for lack of appellate jurisdiction.

BACKGROUND

Appellant/plaintiff Naomi Valdez attempts to appeal from the trial court's June 26, 2015 summary judgment in favor of appellees/defendants Tony Eugene Hamiltion and Paulyssa Hamilton. The Hamiltons assert that this court lacks appellate jurisdiction because Valdez filed an untimely notice of appeal. We address this jurisdictional issue at the threshold.

JURISDICTIONAL ANALYSIS

Valdez filed suit against Tony Hamilton and Autozone Texas, L.P., asserting negligence claims arising out of an automobile accident. The two defendants removed the case to federal court. While the case was pending there, Valdez dismissed her claims against Autozone. The federal district court concluded that the dismissal removed any federal-question jurisdiction and granted Valdez's motion to remand the case to state court.

After remand to the trial court below, Valdez amended her petition to add claims against Paulyssa Hamilton, but Valdez never purported to assert any claims against Autozone following remand. None of the defendants filed a counterclaim against Valdez or any third-party claims or cross-claims. The Hamiltons, the only remaining defendants in the case, each filed a summary-judgment motion seeking the dismissal of Valdez's claims against them.

On June 26, 2015, the trial court granted each defendant's summary-judgment motion and rendered judgment that Valdez take nothing against each defendant, thereby rendering a final judgment actually disposing of all claims and parties. See Lehmann v. Har–Con Corp., 39 S.W.3d 191, 192, 200 (Tex. 2001).

Because Valdez timely filed a motion for new trial, the deadline for filing a notice of appeal from the trial court's judgment was extended to September 24, 2015. See Tex. R. App. P. 26.1(a). The deadline for a party to file an instrument in a bona fide attempt to invoke an appellate court's jurisdiction over the judgment was October 9, 2015. See Tex. R. App. P. 26.3; Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997). No party filed any instrument in an attempt to invoke appellate jurisdiction on or before October 9, 2015.

On September 9, 2015, seventy-five days after rendition of judgment, Valdez's motion for new trial was overruled by operation of law because the trial court had not ruled on the motion. See Tex. R. Civ. P. 329b(c). On October 9, 2015, the trial court lost plenary power to grant a new trial or to vacate, modify, or correct the judgment. See Tex. R. Civ. P. 329b(e). Nonetheless, on December 3, 2015, Valdez filed a notice of nonsuit in which she purported to nonsuit her claims against Autozone, even though she already had dismissed those claims. On the same date, the trial court signed an order purporting to adjudge that Valdez take nothing from the Hamiltons and take nothing from Autozone. This order is void because the trial court lacked plenary power to grant a new trial or to vacate, modify, or correct its June 26, 2015 judgment. See In re Martinez, 478 S.W.3d 123, 125–28 (Tex. App.—Houston [14th Dist.] 2015, orig. proceeding); Tex. R. Civ. P. 329b(e), (f).

Three weeks later, on December 23, 2015, Valdez filed a second motion for new trial. The deadline to perfect appeal already had passed and this untimely motion did not extend that deadline. See Tex. R. App. P. 26.1(a). On January 15, 2016, the trial court signed an order purporting to deny Valdez's second motion for new trial. This order is void because the trial court lacked plenary power to grant a new trial or to vacate, modify, or correct the June 26, 2015 judgment. See In re Martinez, 478 S.W.3d at 125–28; Tex. R. Civ. P. 329b(e), (f).

Valdez first attempted to invoke appellate jurisdiction over the trial court's judgment on February 12, 2016, by filing a notice of appeal. Because Valdez filed her notice of appeal beyond the deadline for invoking this court's jurisdiction over the trial court's final judgment, this court lacks jurisdiction. See Tex. R. App. P. 26.1; Fleming & Assocs. v. Kirklin, No. 14-16-00752-CV, 2016 WL 6885967, at *1–2 (Tex. App.—Houston [14th Dist.] Nov. 22, 2016, pet. filed) (mem. op., per curiam). Thus, we order the appeal dismissed for lack of appellate jurisdiction.

Kem Thompson Frost Chief Justice