Ricardo A. Rodriguez v. Henry Ruiz, M.D.

NUMBER 13-12-00789-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG
___________________________________________________________

RICARDO A. RODRIGUEZ, Appellant,

v.

HENRY E. RUIZ, M.D., Appellee,
____________________________________________________________

On appeal from the 332nd District Court
of Hidalgo County, Texas.
____________________________________________________________

MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Perkes
Memorandum Opinion Per Curiam

Appellant, Ricardo A. Rodriguez, attempted to perfect an appeal from an order

entered by the 332nd District Court of Hidalgo County, Texas, in cause number

C-0410-12-F(1). We dismiss the appeal for want of jurisdiction.
 I. BACKGROUND

The trial court entered a final appealable order in this cause on August 22, 2012.

Appellant filed a motion for reconsideration on September 21, 2012. On November 19,

2012, the trial court issued an “Order Setting Hearing on Plaintiffs’ Motion for

Reconsideration.” The order provided, in part, that:

Plaintiffs’ [sic] Motion for Reconsideration having been presented
and duly considered, the Court is of the opinion that a hearing on same is
necessary and the effective date of the order being reconsidered be
continued to allow the filing of any required notice of appeal within 30 days
of the resolution of said motion for reconsideration.

Appellant filed his notice of appeal on December 18, 2012.

On January 8, 2013, the Clerk of this Court notified appellant that it appeared that

his notice of appeal was not timely perfected. Appellant was advised that, if the defect

was not corrected within ten days from the date of receipt of this Court’s letter, the appeal

would be dismissed. Appellant’s counsel filed a response stating that the notice of

appeal was timely filed because the appellate deadlines were extended to 105 days past

the date of the judgment because he filed a motion for reconsideration. Subsequently,

appellee, Henry E. Ruiz, M.D., filed a motion to dismiss for lack of jurisdiction, and

appellant filed a response thereto.

II. ANALYSIS

Appellate deadlines begin on the date that the trial court signs the judgment or

other appealable order. See TEX. R. APP. P. 26.1(a)–(c); Farmer v. Ben E. Keith Co., 907

S.W.2d 495, 496 (Tex. 1995). Texas Rule of Appellate Procedure 26.1 provides that an

appeal is perfected when notice of appeal is filed within thirty days after the judgment is

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signed, unless a motion for new trial or other specified post-judgment motion is timely

filed. TEX. R. APP. P. 26.1(a)(1). If a motion for new trial or other specified

post-judgment motion is timely filed, the notice of appeal is due within ninety days after

the judgment is signed. See id. R. 26.1(a)(1)–(4).

A motion for reconsideration is a post-judgment motion that extends the appellate

deadlines if timely filed. See TEX. R. CIV. P. 392b(g) (stating that motions to modify,

correct, or reform a judgment extend the trial court’s plenary power); Lane Bank Equip.

Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 310 (Tex. 2000) (holding that any

post-judgment motion, no matter what it is called, will extend plenary power if it seeks a

substantive change in the judgment and is filed within the time limits for a motion for new

trial); Kirschberg v. Lowe, 974 S.W.2d 844, 847–78 (Tex. App.—San Antonio 1998, no

pet.) (holding that a motion for judgment notwithstanding the verdict extends the appellate

time lines). A motion that extends the appellate deadlines must be filed within thirty days

after the judgment or other order complained of is signed. TEX. R. CIV. P. 329b(a)

(providing a thirty day deadline to file a motion for new trial); Padilla v. LaFrance, 907

S.W.2d 454, 458 (Tex. 1995); see In re Brookshire Grocery Co., 250 S.W.3d 66, 69-70

(Tex. 2008) (orig. proceeding) (holding that an amended or supplemental motion for new

trial is timely, and may be filed without leave of court, if it is filed within thirty days of the

judgment and the trial court has not overruled the earlier motion for new trial).

In the instant case, the trial court entered a final appealable order on August 22,

2012. Appellant timely filed a motion for reconsideration on September 21, 2012.

Because appellant filed a motion for reconsideration, his notice of appeal was due 90

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days after the judgment was signed. See Tex. R. App. P. 26.1. Thus, appellant’s notice

of appeal was due on November 20, 2012; however, appellant did not file his notice of

appeal until December 18, 2012.

Appellant contends, citing Texas Rule of Civil Procedure 329b(g), that the deadline

to file his notice of appeal was extended for 105 days because he filed a motion for

reconsideration, and thus, he contends that his notice of appeal was timely. According

to appellant, the order setting hearing changed the effective date of the final order and

restarted the appellate deadlines. In connection with this argument, we note that the trial

court retains jurisdiction over a case for a minimum of thirty days after a final judgment,

during which time the court has plenary power to change its judgment. See TEX. R. CIV.

P. 329b (d); Lane Bank Equip. Co., 10 S.W.3d at 310. Certain post-judgment motions, if

filed within this initial thirty day period, extend the trial court's plenary power for up to an

additional seventy-five days. See TEX. R. CIV. P. 329b (c), (e) & (g). When a motion for

new trial is timely filed, the trial court has plenary power to vacate, modify, correct, or

reform the judgment until thirty days after the motion is overruled, either by a written order

or by operation of law, whichever comes first. TEX. R. CIV. P. 329b (e); Moritz v. Preiss,

121 S.W.3d 715, 720 (Tex. 2003). In either event, the court's plenary power may not be

extended more than 105 days after the judgment was signed. Lane Bank Equip. Co., 10

S.W.3d at 310.

Appellant’s argument conflates the plenary period of the trial court and the

deadline to file a notice of appeal. Compare TEX. R. APP. P. 26.1, with TEX. R. CIV. P.

329b(a),(b)(g); Herrera v. Anzaldua, No. 13-11-00531-CV, 2011 Tex. App. LEXIS 7043

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(Tex. App.—Corpus Christi Aug. 30, 2011, pet. denied) (per curiam mem. op.).

Moreover, the trial court’s order setting a hearing on the motion for reconsideration for

December 6 and purporting to continue the “effective date of the order being

reconsidered” did not alter the appellate deadlines. It is “well settled” that “appellate

jurisdiction cannot be created by consent, stipulation of the parties, or waiver, either by

the court or by the litigants.” Welder v. Fritz, 750 S.W.2d 930, 932 (Tex. App.—Corpus

Christi 1988, no writ); see Stine v. State, 908 S.W.2d 429 (Tex. 1995) (“It is . . .

fundamental that the parties of a suit can neither confer nor waive jurisdiction by

agreement or consent.”); Claxton v. (Upper) Lake Fork Water Control & Improvement

Dist. No. 1, 220 S.W.3d 537, 541–42 (Tex. App.—Texarkana 2007, pet. denied) (“Even if

both parties agreed that a different date [for the final judgment] actually existed, we are

constrained by the rules to determine our jurisdiction by reference to the date on which

the judgment was signed.”).

III. CONCLUSION

Appellate jurisdiction is never presumed. Brashear v. Victoria Gardens of

McKinney, L.L.C., 302 S.W.3d 542, 546 (Tex. App.—Dallas 2009, no pet.). Absent a

timely filed notice of appeal from a final judgment or recognized interlocutory order, we do

not have jurisdiction over the appeal. See Lehmann v. Har-Con Corp., 39 S.W.3d 191,

195 (Tex. 2001); see TEX. R. APP. P. 2, 25.1(b), 26.3; Verburgt v. Dorner, 959 S.W.2d 615,

617 (Tex. 1997). The Court, having examined and fully considered the documents on

file, appellant’s response to this Court’s notice, appellee’s motion to dismiss, and

appellant’s response thereto, is of the opinion that the appeal should be dismissed for

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want of jurisdiction. Accordingly, we GRANT appellee’s motion to dismiss and the

appeal is hereby DISMISSED FOR WANT OF JURISDICTION. See TEX. R. APP. P.

42.3(a).

PER CURIAM

Delivered and filed the
7th day of March, 2013.

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