COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00037-CV
SAMUEL FERREIRA AND LUCIENE APPELLANTS
DE CASTRO
V.
FIRST PREFERENCE MORTGAGE, APPELLEES
CORP.; CITIMORTGAGE, INC.; &
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.
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FROM THE 342ND DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 342-271750-14
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MEMORANDUM OPINION1
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Appellants Samuel Ferreira and Luciene de Castro attempt to appeal from
the trial court’s order denying their verified motion for reconsideration. We
dismiss the appeal.
1
See Tex. R. App. P. 47.4.
On September 18, 2015, the trial court signed a final judgment dismissing
appellants’ claims against appellee First Preference Mortgage Corp. with
prejudice. The judgment stated that it was intended to be final for appellate
purposes and that it disposed of all claims against all parties.2 On November 30,
2015, appellants filed a verified motion for reconsideration, asking the trial court
to grant a new trial. The trial court held a hearing on the motion. At the hearing,
the court explained to appellants that they had filed the motion too late and that
the court did not have plenary power to change its judgment. On January 7,
2016, the trial court signed an order denying appellants’ motion for
reconsideration.3 On January 28, 2016, appellants filed a notice of appeal.
On February 1, 2016, we sent appellants a letter expressing our concern
that we lack jurisdiction. We explained that the notice of appeal was not timely
filed. We informed appellants that we could dismiss the appeal unless they filed
a response that showed grounds for continuing it. Appellants responded to our
letter, but their response did not show grounds for continuing the appeal.
2
The trial court had previously signed a judgment dismissing appellants’
claims against the other appellees listed in the caption above.
3
A trial court’s “order overruling an untimely new trial motion cannot be the
basis of appellate review.” Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003).
2
A motion seeking a new trial or the modification of a final judgment must
be filed within thirty days of the trial court’s signing of the judgment.4 See Tex. R.
Civ. P. 329b(a). When such a motion is not filed within thirty days of the
judgment, the trial court loses plenary power to grant a new trial or to modify the
judgment at the expiration of those thirty days. See Tex. R. Civ. P. 329b(d); Aero
at Sp. Z.O.O. v. Gartman, 469 S.W.3d 314, 316 (Tex. App.—Fort Worth 2015, no
pet.). A notice of appeal from a final judgment must generally be filed within
thirty days from the time the judgment is signed, but the notice of appeal may be
filed within ninety days from that date if a party files a timely motion for new trial
or a timely motion to modify the judgment. See Tex. R. App. P. 26.1(a).
Here, appellants’ November 30, 2015 motion seeking a new trial was
untimely because they filed the motion more than thirty days after the
September 18, 2015 final judgment. See Tex. R. Civ. P. 329b(a). Because
appellants’ motion was untimely, the trial court’s plenary power to change its
judgment had expired. See Tex. R. Civ. P. 329b(d). And even if appellants’
motion seeking a new trial had been timely, their January 28, 2016 notice of
appeal was untimely. See Tex. R. App. P. 26.1(a).
The time for filing a notice of appeal is jurisdictional in this court, and
absent a timely-filed notice of appeal or extension request, we must dismiss the
4
Within the motion for reconsideration, appellants recognized that a
“motion that extends the appellate deadlines must be filed within thirty days after
the judgment or other order complained of is signed.”
3
appeal. See Tex. R. App. P. 25.1(b), 26.3; Verburgt v. Dorner, 959 S.W.2d 615,
617 (Tex. 1997). Because appellants’ notice of appeal of the final judgment was
untimely and because appellants cannot appeal the trial court’s denial of their
untimely motion seeking a new trial, we dismiss the appeal for want of
jurisdiction. See Tex. R. App. P. 42.3(a), 43.2(f); Verburgt, 959 S.W.2d at 617;
see also Gilbert v. U.S. Bank Nat’l Ass’n, No. 02-14-00166-CV, 2014 WL
3536749, at *1 (Tex. App.—Fort Worth July 17, 2014, no pet.) (mem. op.).
PER CURIAM
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
DELIVERED: April 14, 2016
4