Richard Ramirez v. The State of Texas, et al--Appeal from 87th District Court of County

MARY'S OPINION HEADING NO. 12-01-00267-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

RICHARD RAMIREZ,

 
APPEAL FROM THE 87TH

APPELLANT

 

V.

 
JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS, ET AL.,

APPELLEES

 
ANDERSON COUNTY, TEXAS
PER CURIAM

This appeal is being dismissed for want of jurisdiction pursuant to Texas Rule of Appellate Procedure 42.3(a). The trial court's judgment was signed on August 7, 2000. Under Texas Rule of Appellate Procedure 26.1(a), unless Appellant timely filed a motion for new trial or other post judgment motion which extended the appellate deadlines, his notice of appeal was due to have been filed "within 30 days after the judgment [was] signed," i.e., September 6, 2000. On July 27, 2001, Appellant filed his "First Motion to Reopen Case" and a "Memorandum Brief" in support of such motion. Because this motion was filed more than 30 days after judgment, the motion was untimely. See Tex. R. Civ. P. 329(a). Consequently, the time for perfecting Appellant's appeal was not extended. Tex. R. App. P. 26.1(a). Appellant filed a notice of appeal on September 28, 2001. Because the notice of appeal was not filed on or before September 6, 2000, this Court has no jurisdiction to consider the appeal.

On October 3, 2001, this Court notified Appellant, pursuant to Tex. R. App. P. 37.2 and 42.3, that his notice of appeal was untimely and that unless he showed the jurisdiction of this Court on or before October 18, 2001, the appeal would be dismissed. On October 17, 2001, Appellant responded to this Court's dismissal notice. In his response, Appellant contends that this Court has jurisdiction because on July 27, 2001, he filed a motion seeking to reopen the case pursuant to Tex. R. Civ. P. 270. The docket sheet indicates that on September 13, 2001, the trial court reviewed the motion to reopen, considered it an untimely motion for new trial and denied it. Appellant asserts, therefore, that judgment was actually rendered on September 13, 2001 and that the notice of appeal filed on September 28 was timely. We disagree for several reasons.

First, the judgment in this case was signed on August 7, 2000. Because Appellant failed to file a timely post judgment motion, the trial court lost its plenary power thirty days after the judgment was signed. See Tex. R. Civ. P. 329b. Thus, any action taken by the trial court after its plenary power expired was a nullity. See In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998) (an order granting a motion for new trial after trial court's plenary power has expired is a nullity). Second, there can be only one final judgment in a case. Tex. R. Civ. P. 301; In re Dryden, 52 S.W.3d 257, 261 (Tex. App.- Corpus Christi 2001, orig. proceeding). This Court's appellate jurisdiction is limited to appeals from final judgments and such interlocutory orders as the legislature has deemed appealable. City of Houston v. Kilburn, 849 S.W.2d 810, 811 (Tex. 1993). As noted above, the final judgment was signed on August 7, 2000 and the "denial" of Appellant's motion to reopen is not otherwise appealable.

Accordingly, we conclude that the notice of appeal filed on September 28, 2001 is untimely. Because this Court is not authorized to extend the time for perfecting an appeal except as provided by Texas Rules of Appellate Procedure 26.1 and 26.3, we dismiss the appeal for want of jurisdiction. Tex. R. App. P. 42.3(a).

 

Opinion delivered October 24, 2001.

Panel consisted of Davis, C.J., Worthen, J., and Griffith, J.

 
DO NOT PUBLISH