Alfred Lee Stone v. Donnell Porter, et al. Appeal from 68th Judicial District Court of Dallas County (memorandum opinion)

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DISMISS and Opinion Filed April 8, 2021 S In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00135-CV ALFRED LEE STONE, Appellant V. DONNELL PORTER AKA DONALD PORTER, EDDIE BYRD, LEOLA REDMOND, MARILYN BYRD, MAXINE BYRD, HATTIE BYRD, AND LUVENIA ROBINSON BUTLER, Appellees On Appeal from the 68th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-20-08985 MEMORANDUM OPINION Before Chief Justice Burns, Justice Molberg, and Justice Goldstein Opinion by Chief Justice Burns This appeal challenges the trial court’s order dismissing the underlying case. For the reasons that follow, we dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a). The underlying case was filed by appellees against appellant and a third party in July 2020 and dismissed for want of prosecution on December 19, 2020. No motion to reinstate or other plenary-power-extending motion was filed. On February 3, 2021, on appellees’ motion, a default judgment was rendered against the third party. The trial court also vacated the dismissal order. The appeal was filed a month later, on March 3. Generally, an appeal must be filed within thirty days of judgment, and no more than one final judgment may be rendered in any cause. See TEX. R. APP. P. 26.1 (setting deadline for perfecting appeal); TEX. R. CIV. P. 301 (concerning judgments). The final judgment here was the order of dismissal, and the notice of appeal was due no later than January 19. See TEX. R. APP. P. 4.1(a), 26.1. Although the order of dismissal was vacated by the trial court and a default judgment signed, the trial court’s actions were void because they were taken outside the court’s plenary power. See State ex rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995) (per curiam). A trial court has plenary power to vacate a judgment for thirty days after a judgment is signed or, with a timely filed motion to reinstate, motion to modify, or motion for new trial, thirty days after such motions are overruled by written order or operation of law, whichever occurs first. See TEX. R. CIV. P. 329b(d),(e); In re Gen. Motors Corp., 296 S.W.3d 813, 821 (Tex. App.—Austin 2009, orig. proceeding). Here, no such motion was filed. On March 12, we notified the parties of our concern. We directed appellant to file a letter brief and cautioned that failure to comply by March 22, 2021 could result in dismissal of the appeal without further notice. See TEX. R. APP. P. 42.3(a),(c). –2– Rather than filing a letter brief, appellant filed a motion to dismiss the appeal as to appellee Donnell Porter. The motion, however, does not address the Court’s jurisdictional concerns even as to Porter. Accordingly, because the record before us reflects the notice of appeal was untimely filed, we dismiss the appeal. See id.; Brashear v. Victoria Gardens of McKinney, L.L.C., 302 S.W.3d 542, 545 (Tex. App.—Dallas 2009, no pet.) (op. on reh’g) (timely filing of notice of appeal is jurisdictional). /Robert D. Burns, III/ ROBERT D. BURNS, III CHIEF JUSTICE 210135F.P05 –3– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT ALFRED LEE STONE, Appellant No. 05-21-00135-CV On Appeal from the 68th Judicial District Court, Dallas County, Texas Trial Court Cause No. DC-20-08985. Opinion delivered by Chief Justice Burns, Justices Molberg and Goldstein participating. V. DONNELL PORTER A/K/A DONALD PORTER, EDDIE BYRD, LEOLA REDMOND, MARILYN BYRD, MAXINE BYRD, HATTIE BYRD, AND LUVENIA ROBINSON BUTLER, Appellees In accordance with this Court’s opinion of this date, we DISMISS the appeal. Judgment entered April 8, 2021. –4–

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