Tuesday, December 4, 2007

Memo opinion illustrates common errors after dismissal of case

Motion to reinstate dismissed case must be filed within 30 days of dismissal. Deadline for appeal starts running on day dismissal order is signed, not date a motion to reinstate is denied. Trial court's plenary jurisdiction had expired. Notice of Appeal untimely.

Cantu-Garcia v. Epernay Community No. 14-07-00862-CV (Tex.App.- Houston [14th Dist.] Nov. 29, 2007)(per curiam)(untimely notice of appeal, DWOJ)
DISMISSED: Per Curiam (Before )
14-07-00862-CV Otoniel De Jesus Cantu-Garcia a/k/a Tony Cantu v. Epernay Community, Et al
Appeal from Co Civil Ct at Law No 2 of Harris County (Hon. Jacqueline Lucci-Smith)


The clerk's record in this appeal reflects that the trial court dismissed this case on March 26, 2007. Both appellant and appellee Epernay Community Association, Inc., assert, however, that this appeal is from an agreed order of dismissal signed June 27, 2007. The notice of appeal was not filed until September 27, 2007. Appellant asserts that he filed a motion to reinstate on August 9, 2007, and an amended motion to reinstate on August 23, 2007. Our record does not contain a motion to reinstate. A motion to reinstate must be filed within 30 days of the order of dismissal. See Tex. R. Civ. P. 165a(3), 329b; see also McAllen v. Ramirez, 875 S.W.2d 702, 704‑05 (Tex. App.- Corpus Christi 1994, orig. proceeding) (noting the practical similarities between a motion to reinstate and a motion for new trial). A motion to reinstate filed more than 30 days after dismissal is untimely. In re Simon Prop. Group (Delaware), Inc., 985 S.W.2d 212, 214‑215 (Tex. App.- Corpus Christi 1999, orig. proceeding). Therefore, even if we accept appellant's statement that he filed a motion to reinstate on August 9, 2007, it was untimely.

The trial court's plenary power over the dismissal order expired 30 days after it was signed. Once a trial court loses plenary power, it may only take limited actions with respect to the judgment, such as correction of a clerical error or enforcement of the judgment. Custom Corporates, Inc. v. Security Storage, Inc., 207 S.W.3d 835, 839 (Tex. App. - Houston [14 Dist.] 2006, no pet.).

The notice of appeal must be filed within thirty days after the judgment is signed when appellant has not filed a timely motion for new trial, motion to modify the judgment, motion to reinstate, or request for findings of fact and conclusion of law. See Tex. R. App. P. 26.1. An appeal from order dismissing a case is taken from order of dismissal, not from the court's ruling on a motion to reinstate. Weik v. Second Baptist Church, 988 S.W.2d 437, 438 (Tex. App.-Houston [1st Dist.] 1999, pet. denied). Therefore, to appeal the dismissal of this case, appellant was required to file a notice of appeal on or before July 27, 2007, 30 days after the dismissal order.

Appellant's notice of appeal filed September 27, 2007, was not timely. A motion for extension of time is necessarily implied when an appellant, acting in good faith, files a notice of appeal beyond the time allowed by rule 26.1, but within the fifteen-day grace period provided by Rule 26.3 for filing a motion for extension of time. See Verburgt v. Dorner, 959 S.W.2d 615, 617-18 (1997) (construing the predecessor to Rule 26). Appellant's notice of appeal was not filed within the fifteen-day period provided by rule 26.3, however.

On November 1, 2007, appellee Epernay Community Association, Inc. filed a motion to dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a). Appellant filed a response, but his response fails to demonstrate that this court has jurisdiction to entertain the appeal.
Epernay also filed a motion for sanctions seeking damages for appellant's filing of a frivolous appeal. See Tex. R. App. P.45. We deny the motion. We also deny appellant's request for sanctions and attorney's fees contained in his response to the motions to dismiss and for sanctions.

Accordingly, the appeal is ordered dismissed.


Judgment rendered and Memorandum Opinion filed November 29, 2007.
Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

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