Dismissed and Memorandum Opinion filed January 12, 2006.
In The
Fourteenth Court of Appeals
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NO. 14-05-01183-CV
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JOSEPH and ETTA SUE FRANTZ, Appellants
V.
BRIAN and SHERRY MURPHY, Appellees
On Appeal from the 268th District Court
Fort Bend County, Texas
Trial Court Cause No. 03-CV-128019
M E M O R A N D U M O P I N I O N
The trial court signed a summary judgment on May 17, 2005. Appellants filed a motion for new trial on June 15, 2005. On August 17, 2005, the trial court signed an order granting appellees= motion to modify the judgment and a new final summary judgment. No further motion for new trial was filed. Appellant=s notice of appeal not was filed until November 15, 2005.
The notice of appeal must be filed within thirty days after the judgment is signed unless appellant has filed a timely motion for new trial, motion to modify the judgment, motion to reinstate, or request for findings of fact and conclusion of law. See Tex. R. App. P. 26.1. Thus, the deadline to file a notice of appeal from the original judgment was August 15, 2005, ninety days after the judgment was signed. See id. The deadline to appeal is calculated from the modified August 17, 2005 judgment, however. See Tex. R. App. P. 4.3. The deadline was September 16, 2005, because no motion for new trial was filed after the modified judgment.
On December 14, 2005, notification was transmitted to all parties of the court=s intention to dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a). Appellants filed a response in which they argue that their June 15, 2005 motion for new trial should be effective to extend the time for perfection to ninety days after the modified August 17, 2005 judgment, making their notice of appeal timely. They assert their motion for new trial was premature. A prematurely filed motion for new trial will be Adeemed to be filed on the date of but subsequent to the time of signing of the judgment the motion assails . . . .@ Tex. R. Civ. P. 306c (emphasis added). The motion for new trial in this case did not assail the August 17, 2005 judgment, which was entered after appellants= motion for new trial was overruled.[1] Therefore, there was no new post-judgment motion to extend the appellate timetable beyond thirty days after the August 17, 2005 judgment. Appellants= notice of appeal is untimely. Appellants provide no reason for their failure to file their notice of appeal within thirty days after the new judgment was signed.
Appellants argue in the alternative that they should be permitted to proceed with a restricted appeal. Appellants filed a timely motion for new trial after the original May 17, 2005 judgment. Therefore, appellants are not entitled to a restricted appeal. See Tex. R. App. P. 30 (limiting restricted appeals to parties who did not filed a timely post-judgment motion).
Accordingly, the appeal is ordered dismissed.
PER CURIAM
Judgment rendered and Memorandum Opinion filed January 12, 2006.
Panel consists of Chief Justice Hedges and Justices Yates and Anderson.
[1] The record indicates a hearing was conducted on the motion for new trial on July 29, 2005, but it does not contain an order overruling the motion. If no order was signed, the motion was overruled by operation of law on July 31, 2005. See Tex. R. Civ. P. 329b(c). The trial court retained plenary power to enter the modified judgment for thirty days after the motion for new trial was overruled. See Tex. R. Civ. P. 329b(e). Moreover, the trial court=s order corrected a clerical error and was proper under Texas Rule of Civil Procedure 316, even after the expiration of plenary power. If a clerical correction is made after the expiration of plenary power, the time to complain on appeal about the original judgment is not extended. See Tex. R. Civ. P. 329b(h).