elizabeth-a-flack-batie-and-lisa-a-batie-v-john-h-batie-jhb ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00021-CV
ELIZABETH A. FLACK-BATIE AND APPELLANTS
LISA A. BATIE
V.
JOHN H. BATIE & JHB CONSULTING, APPELLEES
JOHN J. BATIE, ERIC C. BATIE &
SOUND FACTORY SYSTEMS LLC,
AND U-HAUL CO. OF FORT WORTH
----------
FROM COUNTY COURT AT LAW NO. 3 OF TARRANT COUNTY
----------
MEMORANDUM OPINION1
----------
Appellants filed a notice of appeal on January 4, 2011, purporting to
appeal a December 28, 2010 judgment or order of the trial court on a motion to
extend post-judgment deadlines. We sent a letter on January 21, 2011, noting
our concern that we may not have jurisdiction because there is no final judgment
1
See Tex. R. App. P. 47.4.
or order to appeal. We also expressed our concern that we addressed the same
issue in our prior dismissal of the parties’ appeal. See Flack-Batie v. Batie, No.
02-10-00269-CV, 2010 WL 3834653 (Tex. App.—Fort Worth Sep. 30, 2010, no
pet.) (mem. op.). We requested that any party desiring to continue the appeal file
a response showing grounds for continuing the appeal. In response, Appellants
filed an amended notice of appeal on February 8, 2011, appealing the same
motion to extend post-judgment deadlines and the July 1, 2010 order dismissing
Appellants’ motion to reinstate for want of jurisdiction. Appellants also filed in
response a “Request for Judicial Notice and Motion for Leave to Reconsider
Recall for Good Cause.”
As we stated in our January 21, 2011 letter, we previously addressed their
motion to reinstate in our dismissal in cause number 02-10-00269-CV. In that
dismissal, we noted that the motion was filed out of time. See Tex. R. Civ. P.
165a(3), 329b(d); Flack-Batie, 2010 WL 3834653, at *1. Appellants’ August 3,
2010 notice of appeal was untimely, and Appellants’ February 8, 2011 notice of
appeal is likewise untimely to the extent Appellants attempt to appeal the trial
court’s order on their motion to reinstate. See Tex. R. App. P. 26.1(a)(3)
(providing that a notice of appeal is generally due within thirty days after the
judgment is signed but that a timely filed motion to reinstate extends the filing
deadline to ninety days after the judgment is signed). This court, therefore, has
no jurisdiction to address that order. See Tex. R. App. P. 25.1, 26.1 (providing
that appellate courts have jurisdiction over timely filed notices of appeal).
2
In their “Request for Judicial Notice and Motion for Leave to Reconsider
Recall for Good Cause,” Appellants argue that their motion to reinstate was
timely filed and therefore extended the deadline to file a motion to extend post-
judgment deadlines. We have held that their motion to reinstate was not timely
filed, and thus, the deadline was not extended. See Tex. R. App. P. 26.1(a)
(stating that the appellate deadline is extended by the timely filing of a motion to
reinstate). Appellants’ motion to extend post-judgment deadlines was filed
October 19, 2010, after the trial court’s plenary power had expired. See John v.
Marshall Health Servs., 58 S.W.3d 738, 741 (Tex. 2001) (holding that a motion to
extend post-judgment deadlines under Rule 306a must be filed before the
expiration of the trial court’s jurisdiction). We are without jurisdiction to review a
motion filed in the trial court after that court's plenary power has expired. See
Clewis v. Safeco Ins. Co. of Am., 287 S.W.3d 197, 203 (Tex. App.—Fort Worth
2009, no pet.) (noting the appellate court had no jurisdiction over untimely motion
filed in the trial court).
Because we have no jurisdiction to address either motion in Appellants’
notice of appeal, we deny all pending requests for relief, and we dismiss this
appeal for want of jurisdiction.
PER CURIAM
PANEL: GABRIEL, J.; LIVINGSTON, C.J.; and DAUPHINOT, J.
DELIVERED: April 21, 2011
3