In the Interest of Baby Girl S.

Court of Appeals of Texas

In the Interest of Baby Girl S.

343 S.W.3d 317, 2011 Tex. App. LEXIS 4998, 2011 WL 2586877

CourtCourt of Appeals of Texas

DecidedJuly 1, 2011

Docket05-10-01578-CV

StatusPublished

Cited by3 cases

This text of 343 S.W.3d 317 (In the Interest of Baby Girl S.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In the Interest of Baby Girl S., 343 S.W.3d 317, 2011 Tex. App. LEXIS 4998, 2011 WL 2586877 (Tex. Ct. App. 2011).

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Opinion

OPINION

Opinion By

Justice O’NEILL.

Before the Court is the June 15, 2011 motion of appellee to dismiss the appeal for want of jurisdiction. Appellee contends this Court lacks jurisdiction because, as a non-party to the lawsuit, appellant’s notice of appeal does not invoke this Court’s jurisdiction and also, the notice of appeal was untimely.

A notice of appeal is due thirty days from the date of judgment or, if a timely post-judgment motion is filed, within ninety days of the date of judgment. See Tex.R.App. P. 26.1(a). A non-party may not file a motion for new trial unless the non-party successfully intervenes. Malone v. Hampton, 182 S.W.3d 465, 468 (Tex.App.-Dallas 2006, no pet.). To successfully intervene post-judgment, the plea in intervention must be filed and the judgment must be set aside within thirty days of the date of judgment. Id. First Alief Bank v. White, 682 S.W.2d 251, 252 (Tex.1984) (orig. proceeding) (per curiam) (plea in intervention cannot be considered unless judgment is set aside).

The trial court entered its final decree of adoption on September 10, 2010. On October 8, 2010, appellant filed a petition in intervention and motion for new trial. By order dated December 9, 2010, the trial court denied appellant’s petition in intervention and motion for new trial. The following day, appellant filed a notice of appeal of the trial court’s December 9th order.

Appellant filed his petition in intervention after the trial court entered its judgment. The petition was filed within thirty days of the trial court’s judgment. However, because the trial court did not vacate its judgment within thirty days, appellant’s intervention could not be successful. See White, 682 S.W.2d at 252. The December 9, 2010 order is void because the trial court’s plenary jurisdiction expired on October 10, 2010. Moreover, assuming appellant could appeal from the adoption decree entered on September 10, 2010, appellant’s notice of appeal is untimely.

Accordingly, we grant appellee’s motion and dismiss the appeal for want of jurisdiction. See Tex.R.App. P. 42.3(a).

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OPINION

Opinion By

Justice O’NEILL.

Before the Court is the June 15, 2011 motion of appellee to dismiss the appeal for want of jurisdiction. Appellee contends this Court lacks jurisdiction because, as a non-party to the lawsuit, appellant’s notice of appeal does not invoke this Court’s jurisdiction and also, the notice of appeal was untimely.

A notice of appeal is due thirty days from the date of judgment or, if a timely post-judgment motion is filed, within ninety days of the date of judgment. See Tex.R.App. P. 26.1(a). A non-party may not file a motion for new trial unless the non-party successfully intervenes. Malone v. Hampton, 182 S.W.3d 465, 468 (Tex.App.-Dallas 2006, no pet.). To successfully intervene post-judgment, the plea in intervention must be filed and the judgment must be set aside within thirty days of the date of judgment. Id. First Alief Bank v. White, 682 S.W.2d 251, 252 (Tex.1984) (orig. proceeding) (per curiam) (plea in intervention cannot be considered unless judgment is set aside).

The trial court entered its final decree of adoption on September 10, 2010. On October 8, 2010, appellant filed a petition in intervention and motion for new trial. By order dated December 9, 2010, the trial court denied appellant’s petition in intervention and motion for new trial. The following day, appellant filed a notice of appeal of the trial court’s December 9th order.

Appellant filed his petition in intervention after the trial court entered its judgment. The petition was filed within thirty days of the trial court’s judgment. However, because the trial court did not vacate its judgment within thirty days, appellant’s intervention could not be successful. See White, 682 S.W.2d at 252. The December 9, 2010 order is void because the trial court’s plenary jurisdiction expired on October 10, 2010. Moreover, assuming appellant could appeal from the adoption decree entered on September 10, 2010, appellant’s notice of appeal is untimely.

Accordingly, we grant appellee’s motion and dismiss the appeal for want of jurisdiction. See Tex.R.App. P. 42.3(a).

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343 S.W.3d 317, 2011 Tex. App. LEXIS 4998, 2011 WL 2586877, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-baby-girl-s-texapp-2011.

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