Estate of Mary R. Courvier, Deceased--Appeal from 81st Judicial District Court of Wilson County

MEMORANDUM OPINION
No. 04-07-00469-CV
ESTATE OF Mary R. COURVIER, Deceased
From the 81st Judicial District Court, Wilson County, Texas
Trial Court No. 06-01-0029-CVW
Honorable Stella H. Saxon, Judge Presiding

PER CURIAM

 

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Karen Angelini, Justice

 

Delivered and Filed: October 10, 2007

 

DISMISSED FOR LACK OF JURISDICTION

On August 26, 2003, the probate court entered an agreed judgment based on a settlement agreement, ordering the executor to sell the estate's interest in certain real property. On September 29, 2006, the probate court entered a second agreed judgment relating to the sale of the property. On March 26, 2007, the appellant filed an application to set aside the September 29, 2006 agreed judgment. On June 19, 2007, the probate court entered an order denying the application. On July 10, 2007, appellant Joseph M. Courvier filed his notice of appeal.

Appellee Alfred L. Courvier filed a motion to dismiss this appeal for lack of jurisdiction asserting that the probate court's order denying Joseph's application is not appealable just as an order denying an untimely motion for new trial is not appealable. Joseph responded that the probate court's September 29, 2006 judgment was entered 1,098 days after the August 26, 2003 judgment; therefore, Joseph asserts the September 29, 2006 judgment is void because it was signed outside the trial court's plenary power.

A notice of appeal must be filed within thirty days from the date the trial court signs a judgment unless a timely motion for new trial is filed. Tex. R. App. P. 26.1. A motion for new trial must be filed within thirty days after a judgment is signed. Tex. R. Civ. P. 329b(a). In this case, the deadline to timely file a motion for new trial relating to the September 29, 2006 judgment would have been October 30, 2006. Joseph did not file his application to set aside the probate court's September 29, 2006 judgment until March 26, 2007. Accordingly, Joseph's notice of appeal of the September 29, 2006 judgment was due to be filed on October 30, 2006. Joseph did not file his notice of appeal until July 10, 2007.

Joseph's notice of appeal states that he is appealing the trial court's order dated June 19, 2007, overruling his application to set aside the September 29, 2006 judgment. From his response to Alfred's motion, Joseph appears to be raising the same argument asserted by the appellants in Kenseth v. Dallas County, 126 S.W.3d 584 (Tex. App.--Dallas 2004, pet. denied). That is, because the September 29, 2006 judgment is void, the appellate timetable is trumped by the rule that void judgments can be collaterally attacked. Id. at 596. However, even a void judgment can become final for the purposes of appeal. See Newsom v. Ballinger Indep. Sch. Dist., 213 S.W.3d 375, 380 (Tex. App.--Austin 2006, no pet.); In re Vlasak, 141 S.W.3d 233, 238 (Tex. App.--San Antonio 2004, orig. proceeding). Assuming, without deciding, the trial court's September 29, 2006 judgment is void, Joseph was required to file a timely notice of appeal in order to challenge it on direct appeal. See Kenseth, 126 S.W.3d at 596-97. The trial court's order denying Joseph's untimely application to set aside the September 29, 2006 judgment is not an appealable order. See Overka v. Bauri, No. 14-06-00083-CV, 2006 WL 2074688, at *1 (Tex. App.--Houston [14 Dist.] July 27, 2006, no pet.) (order denying motion for new trial is not appealable).

Alfred's motion to dismiss is granted, and this appeal is dismissed. Costs of the appeal are taxed against appellant Joseph M. Courvier.

PER CURIAM