Ricardo A. Rodriguez v. Henry Ruiz, M.D. ( 2013 )

NUMBER 13-12-00789-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
___________________________________________________________
RICARDO A. RODRIGUEZ, Appellant,
v.
HENRY E. RUIZ, M.D., Appellee,
____________________________________________________________
On appeal from the 332nd District Court
of Hidalgo County, Texas.
____________________________________________________________
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Perkes
Memorandum Opinion Per Curiam
Appellant, Ricardo A. Rodriguez, attempted to perfect an appeal from an order
entered by the 332nd District Court of Hidalgo County, Texas, in cause number
C-0410-12-F(1). We dismiss the appeal for want of jurisdiction.
I. BACKGROUND
The trial court entered a final appealable order in this cause on August 22, 2012.
Appellant filed a motion for reconsideration on September 21, 2012. On November 19,
2012, the trial court issued an “Order Setting Hearing on Plaintiffs’ Motion for
Reconsideration.” The order provided, in part, that:
Plaintiffs’ [sic] Motion for Reconsideration having been presented
and duly considered, the Court is of the opinion that a hearing on same is
necessary and the effective date of the order being reconsidered be
continued to allow the filing of any required notice of appeal within 30 days
of the resolution of said motion for reconsideration.
Appellant filed his notice of appeal on December 18, 2012.
On January 8, 2013, the Clerk of this Court notified appellant that it appeared that
his notice of appeal was not timely perfected. Appellant was advised that, if the defect
was not corrected within ten days from the date of receipt of this Court’s letter, the appeal
would be dismissed. Appellant’s counsel filed a response stating that the notice of
appeal was timely filed because the appellate deadlines were extended to 105 days past
the date of the judgment because he filed a motion for reconsideration. Subsequently,
appellee, Henry E. Ruiz, M.D., filed a motion to dismiss for lack of jurisdiction, and
appellant filed a response thereto.
II. ANALYSIS
Appellate deadlines begin on the date that the trial court signs the judgment or
other appealable order. See TEX. R. APP. P. 26.1(a)–(c); Farmer v. Ben E. Keith Co., 907
S.W.2d 495, 496 (Tex. 1995). Texas Rule of Appellate Procedure 26.1 provides that an
appeal is perfected when notice of appeal is filed within thirty days after the judgment is
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signed, unless a motion for new trial or other specified post-judgment motion is timely
filed. TEX. R. APP. P. 26.1(a)(1). If a motion for new trial or other specified
post-judgment motion is timely filed, the notice of appeal is due within ninety days after
the judgment is signed. See id. R. 26.1(a)(1)–(4).
A motion for reconsideration is a post-judgment motion that extends the appellate
deadlines if timely filed. See TEX. R. CIV. P. 392b(g) (stating that motions to modify,
correct, or reform a judgment extend the trial court’s plenary power); Lane Bank Equip.
Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 310 (Tex. 2000) (holding that any
post-judgment motion, no matter what it is called, will extend plenary power if it seeks a
substantive change in the judgment and is filed within the time limits for a motion for new
trial); Kirschberg v. Lowe, 974 S.W.2d 844, 847–78 (Tex. App.—San Antonio 1998, no
pet.) (holding that a motion for judgment notwithstanding the verdict extends the appellate
time lines). A motion that extends the appellate deadlines must be filed within thirty days
after the judgment or other order complained of is signed. TEX. R. CIV. P. 329b(a)
(providing a thirty day deadline to file a motion for new trial); Padilla v. LaFrance, 907
S.W.2d 454, 458 (Tex. 1995); see In re Brookshire Grocery Co., 250 S.W.3d 66, 69-70
(Tex. 2008) (orig. proceeding) (holding that an amended or supplemental motion for new
trial is timely, and may be filed without leave of court, if it is filed within thirty days of the
judgment and the trial court has not overruled the earlier motion for new trial).
In the instant case, the trial court entered a final appealable order on August 22,
2012. Appellant timely filed a motion for reconsideration on September 21, 2012.
Because appellant filed a motion for reconsideration, his notice of appeal was due 90
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days after the judgment was signed. See Tex. R. App. P. 26.1. Thus, appellant’s notice
of appeal was due on November 20, 2012; however, appellant did not file his notice of
appeal until December 18, 2012.
Appellant contends, citing Texas Rule of Civil Procedure 329b(g), that the deadline
to file his notice of appeal was extended for 105 days because he filed a motion for
reconsideration, and thus, he contends that his notice of appeal was timely. According
to appellant, the order setting hearing changed the effective date of the final order and
restarted the appellate deadlines. In connection with this argument, we note that the trial
court retains jurisdiction over a case for a minimum of thirty days after a final judgment,
during which time the court has plenary power to change its judgment. See TEX. R. CIV.
P. 329b (d); Lane Bank Equip. Co., 10 S.W.3d at 310. Certain post-judgment motions, if
filed within this initial thirty day period, extend the trial court's plenary power for up to an
additional seventy-five days. See TEX. R. CIV. P. 329b (c), (e) & (g). When a motion for
new trial is timely filed, the trial court has plenary power to vacate, modify, correct, or
reform the judgment until thirty days after the motion is overruled, either by a written order
or by operation of law, whichever comes first. TEX. R. CIV. P. 329b (e); Moritz v. Preiss,
121 S.W.3d 715, 720 (Tex. 2003). In either event, the court's plenary power may not be
extended more than 105 days after the judgment was signed. Lane Bank Equip. Co., 10
S.W.3d at 310.
Appellant’s argument conflates the plenary period of the trial court and the
deadline to file a notice of appeal. Compare TEX. R. APP. P. 26.1, with TEX. R. CIV. P.
329b(a),(b)(g); Herrera v. Anzaldua, No. 13-11-00531-CV, 2011 Tex. App. LEXIS 7043
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(Tex. App.—Corpus Christi Aug. 30, 2011, pet. denied) (per curiam mem. op.).
Moreover, the trial court’s order setting a hearing on the motion for reconsideration for
December 6 and purporting to continue the “effective date of the order being
reconsidered” did not alter the appellate deadlines. It is “well settled” that “appellate
jurisdiction cannot be created by consent, stipulation of the parties, or waiver, either by
the court or by the litigants.” Welder v. Fritz, 750 S.W.2d 930, 932 (Tex. App.—Corpus
Christi 1988, no writ); see Stine v. State, 908 S.W.2d 429 (Tex. 1995) (“It is . . .
fundamental that the parties of a suit can neither confer nor waive jurisdiction by
agreement or consent.”); Claxton v. (Upper) Lake Fork Water Control & Improvement
Dist. No. 1, 220 S.W.3d 537, 541–42 (Tex. App.—Texarkana 2007, pet. denied) (“Even if
both parties agreed that a different date [for the final judgment] actually existed, we are
constrained by the rules to determine our jurisdiction by reference to the date on which
the judgment was signed.”).
III. CONCLUSION
Appellate jurisdiction is never presumed. Brashear v. Victoria Gardens of
McKinney, L.L.C., 302 S.W.3d 542, 546 (Tex. App.—Dallas 2009, no pet.). Absent a
timely filed notice of appeal from a final judgment or recognized interlocutory order, we do
not have jurisdiction over the appeal. See Lehmann v. Har-Con Corp., 39 S.W.3d 191,
195 (Tex. 2001); see TEX. R. APP. P. 2, 25.1(b), 26.3; Verburgt v. Dorner, 959 S.W.2d 615,
617 (Tex. 1997). The Court, having examined and fully considered the documents on
file, appellant’s response to this Court’s notice, appellee’s motion to dismiss, and
appellant’s response thereto, is of the opinion that the appeal should be dismissed for
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want of jurisdiction. Accordingly, we GRANT appellee’s motion to dismiss and the
appeal is hereby DISMISSED FOR WANT OF JURISDICTION. See TEX. R. APP. P.
42.3(a).
PER CURIAM
Delivered and filed the
7th day of March, 2013.
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