Brandi Renee Day D/B/A Designer Secrets v. Larry Smith and Diana Smith

Opinion

NUMBER 13-12-00548-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ____________________________________________________________

BRANDI RENEE DAY D/B/A DESIGNER SECRETS, Appellant,

v.

LARRY SMITH AND DIANA SMITH, Appellees. ____________________________________________________________

On appeal from the County Court at Law No. 7 of Hidalgo County, Texas. ____________________________________________________________

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Benavides and Perkes Memorandum Opinion Per Curiam

This cause is before the Court on appellees’ motion to dismiss appeal for lack of

jurisdiction. Appellant, Brandi Renee Day d/b/a Designer Secrets, attempted to perfect

an appeal from an order granting summary judgment signed on May 25, 2012, in cause

no. CL-08-0727-G. The record indicates that on June 22, 2012, appellees filed a motion for new trial

which was denied by the trial court on August 14, 2012. On August 28, 2012, the trial

court entered an “Amended Order Granting Plaintiff’s Motion for Partial Summary

Judgment.” The amended order provided that because the plaintiffs’ motion for

summary judgment had not requested affirmative relief on their breach of contract claim,

none was granted on plaintiffs’ claim and it not only remained open and pending, but was

to be set for trial or other disposition on the merits. The Amended Order specifically

states “Because this Order disposes only of the Defendant’s Counterclaim it is not a final

order and not appealable because it has not resolved all issues as to all parties herein.”

In terms of appellate jurisdiction, appellate courts only have jurisdiction to review

final judgments and certain interlocutory orders identified by statute. Lehmann v.

Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). 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.

2 The Amended Order was filed within the trial court’s plenary power. See TEX. R.

CIV. P. 329b (e). Because there is no final judgment or order subject to appeal, the

notice of appeal is premature. See Tex. R. App. P. 26.1, 27.1(a).

Appellees’ motion to dismiss appeal for lack of jurisdiction is granted.

Accordingly, the appeal is DISMISSED FOR WANT OF JURISDICTION. See TEX. R.

APP. P. 42.3(a).

PER CURIAM

Delivered and filed the 29th day of November, 2012.