Michael Marc Moore v. Tower Specialists, Inc.

NO. 12-09-00193-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

MICHAEL MARC MOORE, § APPEAL FROM THE
APPELLANT

V. § COUNTY COURT AT LAW

TOWER SPECIALISTS, INC.,
APPELLEE § NACOGDOCHES COUNTY, TEXAS

MEMORANDUM OPINION
Appellee, Tower Specialists, Inc., has filed a motion to dismiss this appeal for want of
jurisdiction. Appellant, Michael Marc Moore, has filed a response asserting that this court has
jurisdiction of the appeal. After considering Tower’s motion and Moore’s response, we grant
Tower’s motion and dismiss the appeal for want of jurisdiction.
Moore initially attempted to appeal the trial court’s judgment in this case by filing a notice
of appeal on May 11, 2009. Because the notice of appeal was untimely, we dismissed the appeal for
want of jurisdiction. See Moore v. Tower Specialists, Inc., No. 12-09-00139-CV, 2009 WL
1314161 (Tex. App.–Tyler May 13, 2009, no pet.) (mem. op.). Then, on May 20, 2009, Moore filed
in the trial court a “Motion to Vacate and Modify and Correct Original Judgment” (the “motion to
modify”) based upon the erroneous spelling of his middle name in Tower’s pleadings. The trial
court granted the motion on May 26, 2009 and entered a “Modified and Corrected Judgment against
Defendant Michael Marc Moore. . . .” Moore contends that the trial court signed the modified and
corrected judgment before its plenary power expired, and therefore his notice of appeal in this second
appeal, filed on June 25, 2009, is timely. Consequently, he concludes, this court has jurisdiction of
the appeal.
 We first note that Moore’s motion to modify was untimely because it was filed on May 20,
2009, more than thirty days after the date the first judgment was signed (January 12, 2009). See TEX .
R. CIV . P. 329b(g) (motion to modify, correct, or reform judgment is governed by times prescribed
for motion for new trial); TEX . R. CIV . P. 329b(a) (if filed, motion for new trial must be filed prior
to or within thirty days after judgment complained of is signed). However, Moore’s motion for new
trial, filed on February 11, 2009, was timely. See TEX . R. CIV . P. 329b(a). The trial court signed an
order overruling the motion for new trial on April 30, 2009. But the motion for new trial was
overruled by operation of law on March 30, 2009. See TEX . R. CIV . P. 329b(c) (motion for new trial
considered overruled by operation of law on expiration of seventy-five days after judgment signed
if not determined by written order signed within that time).1 Accordingly, the trial court’s plenary
power was extended until April 29, 2009, thirty days after the motion for new trial was overruled by
operation of law. See TEX . R. CIV . P. 329b(a); TEX . R. CIV . P. 329b(e) (if any party files timely
motion for new trial, regardless of whether appeal has been perfected, trial court has plenary power
to grant new trial or vacate, modify, correct, or reform judgment until thirty days after overruling of
all such timely filed motions by written and signed order or by operation of law, whichever occurs
first); TEX . R. CIV . P. 329b(c) (motion for new trial not determined by written order signed within
seventy-five days after judgment signed is overruled by operation of law on expiration of that
period).
Texas Rule of Civil Procedure 329b prescribes the circumstances under which the appellate
deadlines will restart after a trial court modifies its judgment. Rule 329b(g) relates to when a party
files a motion to modify, correct, or reform the judgment, while rule 329b(h) relates to when a trial
court makes a change “in any respect” without a request by a party.2 See TEX . R. CIV . P. 329(b), (g);
Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 313 (Tex. 2000). In either
circumstance, the appellate timetable restarts only if the judgment is modified before the trial

1
M arch 30, 2009 is actually the seventy-seventh day after the January 12, 2009 judgment was signed. The
seventy-fifth day after the judgment was signed was a Saturday (M arch 28, 2009). The first day after the seventy-fifth
day that was not a Saturday or Sunday was March 30, 2009. See T EX . R. C IV . P. 4.; Long John Silver’s Inc. v. Martinez,
850 S.W .2d 773, 776 (Tex. App.–San Antonio 1993, writ dism’d w.o.j.) (applying rule 4 to calculate when motion for
new trial was overruled by operation of law).

2
The Texas Supreme Court has held that “only a motion seeking a substantive change will extend the appellate
deadlines and the court’s plenary power under rule 329b(g).” Lane Bank Equip., 10 S.W .3d at 313.

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court’s plenary power expires. Here, Moore filed his “Motion to Vacate and Modify and Correct
Original Judgment” on May 20, 2009, twenty-one days after the trial court’s plenary power expired.
Therefore, the trial court’s subsequent modification of its judgment also occurred after its plenary
power had expired. Consequently, the modified judgment had no effect on the appellate deadlines.
See TEX . R. CIV . P. 329(b), (g); Lane Bank Equip., 10 S.W.3d 313. As such, Moore’s notice of
appeal, which was due not later than April 13, 2009 but filed on June 25, 2009, was untimely and
did not invoke the jurisdiction of this appeal. Accordingly, Tower’s motion to dismiss is granted,
and the appeal is dismissed for want of jurisdiction.

BRIAN HOYLE
Justice

Opinion delivered September 16, 2009.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)

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