Elia Rodriguez and Juan Rodriguez v. Hector Villarreal and Law Firm of Hector Villarreal ( 2005 )

                             NUMBER 13-04-624-CV

                         COURT OF APPEALS

               THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI - EDINBURG

ELIA RODRIGUEZ AND JUAN RODRIGUEZ,                  Appellants,

                                           v.

HECTOR VILLARREAL AND

LAW FIRM OF HECTOR VILLARREAL,                          Appellees.

                   On appeal from the 93rd District Court

                           of Hidalgo County, Texas.

                    MEMORANDUM OPINION ^[1]

                 Before Justices Yañez, Castillo and Garza

                  Memorandum Opinion by Justice Castillo

Appellants Elia Rodriguez and Juan Rodriguez appeal from an order denying their motion to reinstate their dismissed case against appellees Hector Villarreal and the Law Firm of Hector Villarreal (collectively "Villarreal").  By three issues, the Rodriguezes assert the trial court abused its discretion by denying their motion to reinstate and by failing to provide notice of or hold a hearing on their motion to reinstate.  We dismiss for want of jurisdiction.

I.  Procedural History

On January 29, 2003, the Rodriguezes filed their pro se original petition, alleging that Villarreal breached the contract to represent appellant Juan Rodriguez in a criminal matter stemming from a New York federal arrest warrant.  Alleging breach of contract and fraud, the Rodriguezes sought compensatory and punitive damages. On February 28, 2003, Villarreal timely filed an answer asserting a limitations defense.  On August 19, 2004, the trial court called the case as apparently set on the court<s docket.  Villarreal appeared but neither the Rodriguezes nor their counsel appeared. The trial court acknowledged receipt of an overnight letter from the Rodriguezes' counsel, dated August 18, 2004, providing notice that counsel was in a trial in Dallas.^[2] The trial court also acknowledged its prior order dated May 20, 2004, resetting the case to August 19, 2004, at 1:30 p.m.^[3] 

At the hearing, Villarreal asserted that appellant Elia Rodriguez appeared for a dismissal docket proceeding in April 2004, and, at her request, the trial court continued the case to allow her time to secure counsel. The trial court noted that Juan Rodriguez was incarcerated.  Villarreal moved that the case be dismissed for want of prosecution.  Deeming counsel's overnight letter untimely, the trial court declined to construe the letter as a motion for continuance.  The trial court granted Villarreal's motion to dismiss.  The dismissal order states as follows:

AMENDED ORDER DISMISSING SUIT FOR LACK OF PROSECUTION

On this the 19th day of August 2004, came on to be heard the Court's own motion for Dismissal Due to Lack of Prosecution.

The Court finds that this matter was originally set May 12, 2004, at which time Plaintiffs appeared pro se and informed the Court of their intent to retain an attorney.  At that time, the matter was re-set to May 20, 2004.  On May 20, 2004, Plaintiffs appeared with [their attorney].

The Court finds that attorney for Plaintiffs requested additional time to brief certain points concerning the [statute] of limitations in the instant case.  The Court at that time ordered that briefs be [filed] by all counsel on or before August 2, 2004 and re-set this case to August 19, 2004 at 1:30 p.m.  Defendant timely filed his brief; however Plaintiffs['] attorney failed to timely file a brief as per the Court Order of May 20, 2004.

The Court takes judicial notice of the Pleadings on file and notes that Plaintiffs filed no Motion for Continuance for the hearing scheduled for August 19, 2004.  On August 19, 2004, Defendant appeared, however neither Plaintiffs nor their attorney appeared.

THEREFORE, IT IS HEREBY ORDERED that Plaintiffs['] case be dismissed for lack of prosecution.

[SIGNED] this 29th day of August, 2004.

On September 28, 2004, the Rodriguezes timely filed a verified motion to reinstate, asserting that the failure to appear was the result of mistake or accident and could be reasonably explained.  The affidavit of counsel attached to the motion states that counsel was in trial and, on August 18, 2004, he directed an associate attorney in his office to attend the hearing to represent the Rodriguezes.  The associate's affidavit, also attached to the motion, states that inclement weather caused the cancellation of his flight on August 19, 2004, to attend the hearing, and he was unable to secure another flight into the area due to inclement weather.  On October 18, 2004, by written order, the trial court denied the motion to reinstate.  It is from that order that the Rodriguezes appeal.    

II.  Jurisdiction

The initial inquiry for our court is always whether we have jurisdiction over an appeal.  Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993).  The question of jurisdiction is a legal issue. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).  Therefore, we follow the  de novo standard of review.  Id. A court's jurisdiction is never presumed.  Alaniz v. Hoyt, 105 S.W.3d 330, 335 (Tex. App.BCorpus Christi 2003, no pet.) (citing El‑Kareh v. Tex. Alcoholic Beverage Comm'n, 874 S.W.2d 192, 194 (Tex. App.BHouston [14th Dist.] 1994, no writ)).  If the record does not affirmatively demonstrate the appellate court's jurisdiction, the appeal must be dismissed.  Id.  Therefore, before we consider the issues, we first must determine if the notice of appeal was timely filed.

A trial court retains plenary power to grant a new trial or to vacate, modify, correct, or reform a judgment within thirty days after the judgment is signed.  Tex. R. Civ. P. 329b(d); First Alief Bank v. White, 682 S.W.2d 251, 252 (Tex. 1984) (orig. proceeding) (per curiam).  After the expiration of those thirty days, the trial court has no authority to set aside a judgment except by bill of review for sufficient cause.  Tex. R. Civ. P. 329b(f); Thursby v. Stovall, 647 S.W.2d 953, 954 (Tex. 1983) (orig. proceeding) (per curiam); In re Parker, 117 S.W.3d 484, 487 (Tex. App.BTexarkana 2003, orig. proceeding); In re Garcia, 94 S.W.3d 832, 834 (Tex. App.BCorpus Christi 2002, orig. proceeding).  If no party to a judgment files a motion that extends the trial court's plenary power, the trial court loses plenary power over the judgment thirty days after the judgment is signed.  Bass v. Bass, 106 S.W.3d 311, 314 (Tex. App.BHouston [1st Dist.] 2003, no pet.).

III.  Discussion

The Rodriguezes timely filed their motion to reinstate.  The trial court denied the motion on October 18, 2004. On November 17, 2004, the trial court's plenary jurisdiction expired and the order of dismissal became final.  Id.; see also In re Garcia, 94 S.W.3d at 834.  The Rodriguezes filed their notice of appeal on November 22, 2004.  Our jurisdiction extends no further than that of the court from which the appeal is taken.  Pearson v. State, 315 S.W.2d 935, 938 (Tex. 1958); Nabejas v. Tex. Dep't of Pub. Safety, 972 S.W.2d 875, 876 (Tex. App.BCorpus Christi 1998, no pet.).  Accordingly, we conclude that we have no jurisdiction to consider this appeal.  See Nabejas, 972 S.W.2d at 876. 

IV.  Conclusion

Because we do not have jurisdiction to review this appeal, we dismiss for want of jurisdiction.

ERRLINDA CASTILLO

Justice

Memorandum Opinion delivered and filed

this the 4th day of August, 2005.

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^[1] See Tex. R. App. P. 47.2, 47.4.

^[2] The trial court also acknowledged a second letter from the Rodriguezes' counsel, transmitting a brief on the statute of limitations.  The trial brief apparently was not previously sent due to a calendaring error. The brief is in the appellate record; however, the letters are not.

^[3] The order is not in the appellate record.