Cody Texas, L.P. v. BPL Exploration, LTD.

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-14-00087-CV

Cody Texas, L.P., Appellant

v.

BPL Exploration, LTD., Appellee

From the 49th Judicial District Court, Zapata County, Texas Trial Court No. 6,097 Honorable Jose A. Lopez, Judge Presiding

PER CURIAM

Sitting: Catherine Stone, Chief Justice Karen Angelini, Justice Luz Elena D. Chapa, Justice

Delivered and Filed: April 30, 2014

DISMISSED FOR LACK OF JURISDICTION

Cody Texas, L.P. filed a notice of appeal from the trial court’s final judgment, which the

notice of appeal states was signed October 9, 2013. Concluding that the trial court had lost plenary

power when it signed the October 9, 2013 judgment and that no timely appeal was taken from the

final judgment in the cause, we dismiss this appeal for lack of jurisdiction.

The underlying suit was filed in 2005 and tried to the bench in February 2009. On May

31, 2013, the trial court signed a “Final Judgment” that recited it disposed “of all parties and all

claims and is appealable.” On the same day, Cody Texas filed a request for additional and 04-14-00087-CV

amended findings of fact and conclusions of law and its objections to the proposed judgment.

From the record before us, it does not appear the trial court took any further action in the case until

September 26, 2013, when the court signed an order granting a motion to substitute counsel. On

October 9, 2013, the trial court signed a new “Final Judgment.” Cody Texas subsequently filed a

motion for new trial, and on January 2, 2014, Cody Texas filed its notice of appeal.

A judgment that disposes of all parties and issues in a case is final and appealable.

Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001). The trial court retains plenary power to

grant a new trial or to vacate, modify, correct, or reform the judgment for thirty days after the

judgment is signed. TEX. R. CIV. P. 329b(d). If a timely motion for new trial or motion to modify,

correct, or reform the judgment is filed, the trial court’s plenary power is extended until thirty days

after all such timely-filed motions are overruled. TEX. R. CIV. P. 329b(e), (g). An order signed

after the court loses plenary power is void. In re Brookshire Grocery Co., 250 S.W.3d 66, 72 (Tex.

2008); In re J.P.L., 359 S.W.3d 695, 705 (Tex. App.—San Antonio 2011, pet. denied). A notice

of appeal is due thirty days after the judgment is signed if no motion extending the trial court’s

plenary power was filed, and is due ninety days after judgment if such a motion was filed. TEX.

R. APP. P. 26.1 (a).

The trial court’s May 31, 2013 judgment was signed after a trial on the merits and disposed

of all parties and issues in the case. It was a final and appealable judgment. If we construe Cody

Texas’s Objections to Plaintiff’s Proposed Judgment as a motion to modify, correct, or reform the

May 31 judgment, then the trial court’s plenary power was extended until thirty days after the

motion was overruled. See TEX. R. CIV. P. 329b(e), (g). The record does not contain a written

order overruling the motion; it was therefore overruled by operation of law on August 14, 2013,

seventy-five days after the judgment. See TEX. R. CIV. P. 329b(c). The trial court lost plenary

power thirty days later, on September 13, 2013. See TEX. R. CIV. P. 329b(e). Because the trial -2- 04-14-00087-CV

court did not vacate, modify, correct, or reform the May 31, 2013 judgment while it had plenary

power, that judgment is final, and the subsequent October 9, 2013 judgment is void. See TEX. R.

CIV. P. 329b; Brookshire, 250 S.W.3d at 72; State ex rel. Latty v. Owens, 907 S.W.2d 484, 486

(Tex. 1995); J.P.L., 359 S.W.3d at 705. This court does not have jurisdiction over an appeal from

the May 31, 2013 judgment because the notice of appeal was not filed within ninety days after that

judgment.

After the clerk’s record was filed, we ordered Cody Texas, L.P. to file a response showing

cause why this appeal should not be dismissed for lack of jurisdiction. Cody Texas, L.P. has filed

a response stating that dismissal of the appeal is appropriate. We therefore dismiss this appeal for

lack of jurisdiction.

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