NUMBER 13-12-00548-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
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BRANDI RENEE DAY D/B/A DESIGNER SECRETS, Appellant,
v.
LARRY SMITH AND DIANA SMITH, Appellees.
____________________________________________________________
On appeal from the County Court at Law No. 7
of Hidalgo County, Texas.
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MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Perkes
Memorandum Opinion Per Curiam
This cause is before the Court on appellees’ motion to dismiss appeal for lack of
jurisdiction. Appellant, Brandi Renee Day d/b/a Designer Secrets, attempted to perfect
an appeal from an order granting summary judgment signed on May 25, 2012, in cause
no. CL-08-0727-G.
The record indicates that on June 22, 2012, appellees filed a motion for new trial
which was denied by the trial court on August 14, 2012. On August 28, 2012, the trial
court entered an “Amended Order Granting Plaintiff’s Motion for Partial Summary
Judgment.” The amended order provided that because the plaintiffs’ motion for
summary judgment had not requested affirmative relief on their breach of contract claim,
none was granted on plaintiffs’ claim and it not only remained open and pending, but was
to be set for trial or other disposition on the merits. The Amended Order specifically
states “Because this Order disposes only of the Defendant’s Counterclaim it is not a final
order and not appealable because it has not resolved all issues as to all parties herein.”
In terms of appellate jurisdiction, appellate courts only have jurisdiction to review
final judgments and certain interlocutory orders identified by statute. Lehmann v.
Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). 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.
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The Amended Order was filed within the trial court’s plenary power. See TEX. R.
CIV. P. 329b (e). Because there is no final judgment or order subject to appeal, the
notice of appeal is premature. See Tex. R. App. P. 26.1, 27.1(a).
Appellees’ motion to dismiss appeal for lack of jurisdiction is granted.
Accordingly, the appeal is DISMISSED FOR WANT OF JURISDICTION. See TEX. R.
APP. P. 42.3(a).
PER CURIAM
Delivered and filed the
29th day of November, 2012.
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