Villa Dijon Condominium Association, Inc. and Implicity Management Company v. Mary Winters and Mila Cheatom
04-15-00342-CV
| Tex. App. | Sep 2, 2015Background
- Winters and Cheatom sued Villa Dijon Condominium Ass'n and Implicity Management for breach of contract and negligence. The trial court severed the claims against Villa Dijon into a new cause and entered a final default judgment in that severed cause on March 9, 2015.
- Appellants (Villa Dijon/Implicity) failed to answer by the agreed extended deadline and did not file an answer before the default judgment.
- Appellants filed a "Motion for New Trial" on April 6, 2015, but filed it in the original (pre-severance) cause number and paid the filing fee in that original cause; no motion was filed in the severed cause where the judgment actually was entered.
- A judge initially conditionally granted the motion for new trial but later vacated that ruling and declined to rule for lack of jurisdiction because the motion was not filed in the severed cause.
- Appellants filed a notice of appeal on June 3, 2015. Appellees moved to dismiss the appeal for want of jurisdiction because the notice of appeal was untimely given the misfiled motion for new trial.
Issues
| Issue | Plaintiff's Argument (Winters/Cheatom) | Defendant's Argument (Villa Dijon/Implicity) | Held |
|---|---|---|---|
| Did a motion for new trial filed in the original cause (not the severed cause where judgment was entered) extend the trial court's plenary power and thus the deadline to file a notice of appeal? | The misfiled motion did not extend plenary power because it was not filed in the severed cause; plenary power expired after 30 days. | Appellants argue their timely motion for new trial (filed in original cause) should extend the appellate deadline to 90 days. | Court follows Philbrook/Levin/Richie: a motion for new trial must be filed in the same cause as the judgment to extend plenary power; misfiled motion did not extend the deadline. |
| Can a motion for new trial (by itself) be treated as a "bona fide attempt to invoke appellate jurisdiction" to save a late notice of appeal? | Appellees: a motion for new trial is not a bona fide attempt to invoke appellate jurisdiction and cannot substitute for a notice of appeal. | Appellants: filing a timely motion for new trial evinces a bona fide attempt to invoke appellate jurisdiction. | Held that a motion for new trial is not such an instrument (In re K.A.F.); it cannot substitute for a timely notice of appeal. |
| Was the notice of appeal timely filed given the pleadings and post-judgment filings? | Appellees: notice was untimely—filed 56 days after expiration of the 30-day plenary period for the severed judgment. | Appellants: relied on the misfiled motion to justify later notice. | Held untimely: notice of appeal did not fall within the allowed period because the motion for new trial was filed in the wrong cause, so the appellate court lacked jurisdiction. |
| Should the appellate court dismiss the appeal for want of jurisdiction? | Appellees: yes, under Tex. R. App. P. 42.3(a) because appellate deadlines were not met. | Appellants: argued otherwise (e.g., bona fide attempt / equitable considerations). | Held: the appeal should be dismissed for lack of jurisdiction. |
Key Cases Cited
- Philbrook v. Berry, 683 S.W.2d 378 (Tex. 1985) (motion for new trial must be filed in same cause as the judgment it attacks; misfiled motion does not extend plenary power)
- Richie v. Ranchlander Nat'l Bank, 724 S.W.2d 851 (Tex. App.—Austin 1986) (motion for new trial filed in original cause did not extend district court's jurisdiction over judgment in severed cause)
- In re K.A.F., 160 S.W.3d 923 (Tex. 2005) (a motion for new trial is not a bona fide attempt to invoke appellate jurisdiction and thus cannot substitute for a timely notice of appeal)