Jose Marcos Montalvo v. Harold K. Tummel ( 2020 )

NUMBER 13-20-00314-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JOSE MARCOS MONTALVO, Appellant,
v.
HAROLD K. TUMMEL, Appellee.
On appeal from the 139th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Hinojosa, and Tijerina
Memorandum Opinion by Justice Hinojosa
Appellant Jose Marcos Montalvo appeals from the trial court’s denial of his
application for temporary injunction. Appellee Harold Tummel has filed a motion to
dismiss the appeal arguing that Montalvo’s application for temporary injunction was filed
after the expiration of the trial court’s plenary power. We dismiss the appeal for want of
jurisdiction.
Tummel filed suit against Montalvo seeking possession of real property and a
declaration that he is the owner of said property. On February 7, 2020, the trial court
signed a final judgment in Tummel’s favor. Montalvo filed a motion for new trial on
February 19, which was overruled by operation of law on April 22. See TEX. R. CIV. P.
329b(c). On June 24, Montalvo filed an application for temporary restraining order and
temporary injunction seeking to enjoin Tummel from removing Montalvo from the subject
property or selling the property. The trial court signed an order denying Montalvo’s
application for injunctive relief on July 8. Montalvo appeals from this order.
After Montalvo filed the instant appeal, the trial court signed an August 6 order
vacating its order denying injunctive relief. In the order, the trial court states that it was
without jurisdiction to consider Montalvo’s application for injunctive relief because its
plenary power had expired. See id. R. 329b(f) (“[T]he court may at any time . . . sign an
order declaring a previous judgment or order to be void because signed after the court's
plenary power had expired.”).
A trial court retains jurisdiction over a case for thirty days after a timely filed motion
for new trial is overruled, either by a written and signed order or by operation of law. Id.
R. 329b(e); see Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 310 (Tex.
2000). After the expiration of thirty days, the trial court loses its plenary power and lacks
jurisdiction to act in the matter. See Check v. Mitchell, 758 S.W.2d 755, 756 (Tex. 1988)
(per curiam). Any action taken by the trial court after its plenary power expires is void.
See State ex. rel Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995) (per curiam); In re
Martinez, 478 S.W.3d 123, 126 (Tex. App.—Houston [14th Dist.] 2015, no pet.).
2
An appellate court does not have jurisdiction to address the merits of appeals from
void orders. Freedom Commc'ns., Inc. v. Coronado, 372 S.W.3d 621, 623–24 (Tex. 2012)
(per curiam). In such a case, the appellate court must declare the orders void and dismiss
the appeal. See Owens, 907 S.W.2d at 486 (“The court of appeals should have dismissed
[appellant's] appeal for lack of jurisdiction because the order appealed from was signed
long after the district court's plenary jurisdiction had expired.”). Whether a trial court's
plenary power has expired is a question of law we review de novo. Estate of Brazda, 582
S.W.3d 717, 731 (Tex. App.—Houston [1st Dist.] 2019, no pet.).
Here, Montalvo’s motion for new trial was overruled by operation of law on April
22. See TEX. R. CIV. P. 329b(c). The trial court’s plenary power over the judgment
expired thirty days later on May 22. See id. R. 329b(e). When Montalvo filed his
application for temporary injunction, the trial court was without authority to grant Montalvo
relief. See Mitchell, 758 S.W.2d at 756. Therefore, the trial court properly determined that
its order denying relief was void, and we are without jurisdiction to address the merits of
Montalvo’s appeal. Coronado, 372 S.W.3d at 623–24.
Having reviewed Tummel’s motion to dismiss, this Court finds that the motion is
meritorious and should be granted. Therefore, the appeal is DISMISSED FOR WANT OF
JURISDICTION. Any other pending motions are denied as moot.
LETICIA HINOJOSA
Justice
Delivered and filed the
1st day of October, 2020.
3