Francisco Ivarra, Rebecca Lugo, Juan Villareal, Neal Zabicki, Anahli Vasquez, Willie Galvan, Helen Galvan, and Lee Rivas v. American GI Forum of the United States, Inc. Gilberto Rodriguez Antonio G. Morales and Paul Herrera

• Court: Court of Appeals of Texas
• Decided: May 10, 2013
• Docket: 03-12-00580-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-12-00580-CV

Francisco Ivarra, Rebecca Lugo, Juan Villareal, Neal Zabicki, Anahli Vasquez, Willie Galvan, Helen Galvan, and Lee Rivas, Appellants

v.

American GI Forum of the United States, Inc.; Gilberto Rodriguez; Antonio G. Morales and Paul Herrera, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT NO. D-1-GN-12-001700, HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING

MEMORANDUM OPINION

On June 6, 2012, appellees Gilberto Rodriguez, Antonio G. Morales, and

Paul Herrera sued appellee American GI Forum of the United States, Inc., (“GI Forum”) asserting

various claims and seeking reinstatement of their membership in GI Forum and a related Texas-

based organization. The following day, June 7, 2012, GI Forum filed a general denial, and the trial

court signed an agreed final judgment that same day. On June 29, 2012, the appellants—a minority

group of board members from GI Forum’s National Board of Directors1—filed a motion for new

trial, claiming that GI Forum’s National Commander, Alberto Gonzales, lacked the authority to

1 Francisco Ivarra, Rebecca Lugo, Juan Villareal, Neal Zabicki, Anahli Vasquez, Willie Galvan, Helen Galvan, and Lee Rivas.

1 retain counsel and settle the suit on GI Forum’s behalf. Subsequently, on August 8, 2012, appellants

filed a petition in intervention. Following a hearing, the trial court denied both the motion for new

trial and the petition in intervention on August 28, 2012. Appellants filed a notice of appeal on

August 31, 2012. Because the notice of appeal was not timely filed by a party of record, we dismiss

the appeal for want of jurisdiction.

Any party wishing to appeal a trial court’s judgment must file a notice of appeal. Tex.

R. App. P. 25.1(c). The notice of appeal is due within 30 days after the judgment is signed unless

the trial court’s plenary jurisdiction has been extended as provided in the rules of civil and appellate

procedure. Tex. R. App. P. 26.1; see also Tex. R. Civ. P. 329b. If a party’s notice of appeal is not

timely filed, an appellate court cannot exercise jurisdiction over the party’s attempted appeal, and

the court must dismiss the appeal. Bahar v. Lyon Fin. Servs., Inc., 330 S.W.3d 379, 386 (Tex.

App.—Austin 2010, pet. denied) (citing Wagner & Brown, Ltd. v. Horwood, 58 S.W.3d 732, 737

(Tex. 2001)); Kilroy v. Kilroy, 137 S.W.3d 780, 782 (Tex. App.—Houston [1st Dist.] 2004, no pet.).

The issue presented in this case is whether the motion for new trial that the appellants filed on

June 29, 2012, extended the trial court’s plenary jurisdiction and the time for filing the notice of

appeal in this case. We conclude that it did not.

A nonparty may not move for a new trial or file a post-judgment motion to extend the

court’s plenary jurisdiction unless the nonparty successfully intervenes. Malone v. Hampton,

182 S.W.3d 465, 468 (Tex. App.—Dallas 2006, no pet.); State & County Mut. Fire Ins. Co. v. Kelly,

915 S.W.2d 224, 227 (Tex. App.—Austin 1996, no writ). A nonparty successfully intervenes if he

files a plea in intervention before final judgment is rendered and the court does not strike the plea

2 on motion of a party. Malone, 182 S.W.3d at 468; In re Barrett, 149 S.W.3d 275, 279 (Tex.

App.—Tyler 2004, orig. proceeding). If a petition in intervention is not filed until after the trial court

has rendered judgment—as is the situation here—the trial court may not consider the plea in

intervention unless and until the judgment is set aside. Malone, 182 S.W.3d at 468; see also First

Alief Bank v. White, 682 S.W.2d 251, 252 (Tex. 1984) (holding trial judge could only vacate, set

aside, modify, or amend judgment for thirty days after it was signed and observing that “a plea in

intervention comes too late if filed after judgment and may not be considered unless and until the

judgment has been set aside”); Comal Cnty. Rural H.S. Dist. No. 705 v. Nelson, 314 S.W.2d 956,

957 (Tex. 1958) (plea in intervention after dismissal order became final could not be considered

because dismissal order not set aside while trial court had plenary jurisdiction). If no party of record

files a motion for new trial, the trial court lacks jurisdiction to grant the plea in intervention unless

the judgment is first set aside within thirty days of rendition. Malone, 182 S.W.3d at 468; Kelly,

915 S.W.2d at 227. “[O]nly a motion for new trial filed by a party of record automatically extends

the trial court’s plenary power.” Kelly, 915 S.W.2d at 227 (citing Tex. R. Civ. P. 329b). “A ‘motion

for new trial’ filed by a nonparty is simply an unofficial plea to the trial court to exercise its

discretion allowed under [Tex. R. Civ. P. 320] to set aside the judgment during the court’s plenary

power.” Id. A motion for new trial filed by a nonparty—even if a “necessary party” to the suit—is

ineffective to extend the trial court’s plenary power. See id.

Appellants were not parties to the lawsuit in the court below. Appellants cite no

authority—and we have found none—supporting their theory that a non-profit corporation’s board

members are considered to be parties to a lawsuit against the corporation even when not individually

3 named and served in the lawsuit. Accordingly, because no party to the suit timely filed a motion for

new trial, the trial court’s plenary jurisdiction expired thirty days after judgment was rendered; the

trial court had no jurisdiction to grant a new trial or a plea in intervention after that date; and the

notice of appeal was due thirty days after judgment was rendered. Even if appellants, as nonparties,

could prosecute an appeal in the first instance, their notice of appeal was untimely. We therefore

dismiss the appeal for want of jurisdiction.

___________________________________________

J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Goodwin and Field

Dismissed for Want of Jurisdiction

Filed: May 10, 2013