Summary
stating trial court immediately lost plenary power upon withdrawal of post-trial motion
Summary of this case from Salazar v. HPA Tex. Sub 2016-1 LLCOpinion
NO. 01-15-01084-CV
07-06-2017
CHARLES GALBRAITH, Appellant v. THE WILLIAMS COMPANIES, INC., WILLIAMS GAS PIPELINE COMPANY, LLC AND TRANSCONTINENTAL GAS PIPE LINE COMPANY, LLC, Appellees
On Appeal from the 268th District Court Fort Bend County, Texas
Trial Court Case No. 13-DCV-210842
MEMORANDUM OPINION
Appellant, Charles Galbraith, challenges the trial court's rendition of summary judgment in favor of appellees, The Williams Companies, Inc., Williams Gas Pipeline Company, LLC, and Transcontinental Gas Pipe Line Company, LLC (collectively, "Williams"), in his suit against them for negligence, "[r]es [i]psa [l]oquitor," "[v]icarious [l]iability," and gross negligence. In four issues, Galbraith contends that the trial court erred in granting Williams summary judgment.
We dismiss the appeal for lack of jurisdiction.
Background
In his third amended petition, Galbraith alleged that he sustained personal injuries as a result of a dangerous condition on Williams's property, located along the Brazos River in Fort Bend County, Texas and upon which Williams maintains a pipeline right of way. On or about September 10, 2012, Galbraith, an invitee on Williams's property, set out, using a tractor, to "shred overgrown grass" on the pipeline right of way. As he shredded the grass, the dirt river bank "gave way," causing his tractor to flip over and Galbraith to sustain serious injuries. He brought claims against Williams for negligence, "[r]es [i]psa [l]oquitor," "[v]icarious [l]iability," and gross negligence.
Williams moved for summary judgment, arguing that it was entitled to judgment as a matter of law on Galbraith's claims, which all sound in negligence, because they are barred by Chapter 95 of the Texas Civil Practice and Remedies Code. Williams further argued that there is no evidence that it had "maintained a contractual right of control over [Galbraith's] work," "controlled the operative details of his work to such a degree that he was not free to perform the work in his own way," or had actual knowledge of the dangerous condition which injured Galbraith. In other words, Williams asserted that there is "no evidence of an exception to the protections afforded to [it] by Chapter 95." Williams asked the trial court to grant its summary-judgment motion and dismiss all of Galbraith's claims against it with prejudice.
See TEX. CIV. PRAC. & REM. CODE ANN. §§ 95.001-.004 (Vernon 2011) (titled "Property Owner's Liability for Acts of Independent Contractors and Amount of Recovery").
See id. § 95.003 ("A property owner is not liable for personal injury . . . to a contractor, subcontractor, or an employee of a contractor or subcontractor who constructs, repairs, renovates, or modifies an improvement to real property, including personal injury . . . arising from the failure to provide a safe workplace unless: (1) the property owner exercises or retains some control over the manner in which the work is performed . . . ; and (2) the property owner had actual knowledge of the danger or condition resulting in the personal injury . . . and failed to adequately warn.").
In his response to the summary-judgment motion, Galbraith argued that Williams did not meet its burden of establishing the applicability of Chapter 95 because it had not shown that it was the owner of the property or that his injuries arose from a condition or use of an improvement to real property, which he constructed, repaired, renovated, or modified. Galbraith also asserted that, even assuming the applicability of Chapter 95, Williams had retained control over the manner in which his work was performed and it had actual knowledge of, and failed to warn him about the soil erosion, i.e., the dangerous condition that caused his injuries.
See id. § 95.002 (Chapter 95 "applies only to a claim: (1) against a property owner . . . for personal injury . . . [to] a contractor, or a subcontractor or an employee of a contractor or subcontractor; and (2) that arises from the condition or use of an improvement to real property where the contractor or subcontractor constructs, repairs, renovates, or modifies the improvement"); see also id. § 95.003.
See id. § 95.003.
After a hearing, on August 14, 2015, the trial court granted Williams summary judgment, specifically stating, "Defendants Williams Companies, Inc., Williams Gas Pipeline Company, and Transcontinental Gas Pipe Line Company, LLC's Traditional and No Evidence Motion for Summary Judgment is GRANTED." The trial court titled its order: Order Granting Defendants' Traditional and No Evidence Motion for Summary Judgment. And although it had granted Williams's summary-judgment motion in its entirety, the trial court did not state that it dismissed with prejudice "all of the claims brought by Charles Galbraith against Williams Companies, Inc., Williams Gas Pipeline Company, and Transcontinental Gas Pipe Line Company, LLC."
On September 2, 2015, Williams filed a Motion for Entry of Judgment, noting that on August 14, 2015 the trial court had granted its summary-judgment motion based on Chapter 95, which barred all of Galbraith's claims against it, and the court's summary-judgment order, thus, disposed of all claims against all parties in the case. The trial court took no action on Williams's motion. On November 5, 2015, Williams withdrew its Motion for Entry of Judgment, reiterating that the trial court's August 14, 2015 order had disposed of all claims against all parties, asserting that the trial court's plenary power had expired, and explaining that it had filed its Motion for Entry of Judgment in order to "facilitate [the] removal of the case from the trial [court's] docket."
On November 12, 2015, Galbraith filed a Motion for Docket Control Conference, asserting that the trial court's August 14, 2015 order granting Williams summary judgment did not dismiss all claims or all parties and was not intended to be a final judgment.
Subsequently, on December 18, 2015, 126 days after it had signed its August 14, 2015 order, the trial court signed another order, titled Final Judgment, stating that it had, on August 14, 2015, granted Williams's matter-of-law and no-evidence summary-judgment motion. The trial court further stated, "all of [Galbraith's] claims are DISMISSED with prejudice." On December 18, 2015, Galbraith filed his notice of appeal.
On January 14, 2016, Galbraith filed an amended notice of appeal, correcting a typographical error that appeared in his original notice of appeal. See TEX. R. APP. P. 25.1(g).
Jurisdiction
As a threshold matter, Williams argues that this Court lacks jurisdiction to hear this appeal because Galbraith did not timely appeal the trial court's August 14, 2015 order which "disposed of all claims against all parties."
"[C]ourts always have jurisdiction to determine their own jurisdiction." Heckman v. Williamson Cty., 369 S.W.3d 137, 146 n.14 (Tex. 2012) (internal quotations omitted). Whether we have jurisdiction is a question of law, which we review de novo. See Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007). Generally, appeals may be taken only from final judgments. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Interlocutory orders may be appealed only if permitted by statute. Koseoglu, 233 S.W.3d at 840; Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex. 2001). To invoke an appellate court's jurisdiction over an appealable order, a timely notice of appeal must be filed. See TEX. R. APP. P. 25.1, 26.1; Penny v. Shell Oil Prods. Co., 363 S.W.3d 694, 697 (Tex. App.—Houston [1st Dist.] 2011, no pet.) ("This Court lacks jurisdiction over an appeal when the notice of appeal is not timely filed.").
A judgment issued without a conventional trial is final for purposes of appeal if it either (1) actually disposes of all claims and parties then before the court, regardless of its language, or (2) states with "unmistakable clarity" that it is a final judgment as to all claims and all parties. Lehmann, 39 S.W.3d at 192-93, 200, 204; see also Farm Bureau Cty. Mut. Ins. Co. v. Rogers, 455 S.W.3d 161, 163 (Tex. 2015). Because the law does not require a final judgment to be in any particular form, whether a judicial decree is a final judgment is determined by looking at the language of the decree and the record in the case. Lehmann, 39 S.W.3d at 195; Tex-Fin, Inc. v. Ducharne, 492 S.W.3d 430, 436 (Tex. App.—Houston [14th Dist.] 2016, no pet.).
Notably, a judgment that actually disposes of every issue and party in a case is not interlocutory merely because it states that it is partial or refers to only some of the parties or claims. Lehmann, 39 S.W.3d at 200. In other words, "[t]he language of an order or judgment cannot make it interlocutory when, in fact, on the record, it is a final disposition of the case." Id. A judgment that finally disposes of all remaining parties and claims, based on the record in the case, is final, regardless of its language. Id.; see also Jones v. Ill. Emp'rs Ins. of Wausau, 136 S.W.3d 728, 743 (Tex. App.—Texarkana 2004, no pet.).
Galbraith argues that the trial court intended for its August 14, 2015 order granting Williams summary judgment to be interlocutory because it "struck all language of finality from the . . . order," it "did not dispose of any [d]efendants [in the order] other than Transcontinental Gas Pipe Line Company, LLC," and "[t]he conduct of the parties . . . shows that the . . . order was interlocutory."
In his third amended petition, Galbraith sued Williams for negligence, "[r]es [i]psa [l]oquitor," "[v]icarious [l]iability," and gross negligence. Williams then moved for summary judgment on all of Galbraith's claims, which sound in negligence, arguing that the claims are barred by Chapter 95 of the Texas Civil Practice and Remedies Code and there is "no evidence of an exception to the protections afforded to [Williams] by Chapter 95." See TEX. CIV. PRAC. & REM. CODE ANN. §§ 95.001-.004 (Vernon 2011) (titled "Property Owner's Liability for Acts of Independent Contractors and Amount of Recovery"). In its motion, Williams asked the trial court to grant it summary judgment and dismiss all of Galbraith's claims against it with prejudice.
After a hearing on August 14, 2015, the trial court granted Williams's summary-judgment motion in its entirety, specifically stating, "Defendants Williams Companies, Inc., Williams Gas Pipeline Company, and Transcontinental Gas Pipe Company, LLC's Traditional and No Evidence for Summary Judgment is GRANTED." The trial court titled its order: Order Granting Defendants' Traditional and No Evidence Motion for Summary Judgment. However, although it granted Williams's summary-judgment motion in its entirety, the trial court did not state that it dismissed with prejudice "all of the claims brought by Charles Galbraith against Williams Companies, Inc., Williams Gas Pipeline Company, and Transcontinental Gas Pipe Line Company, LLC."
The August 14, 2015 order does not show with "unmistakable clarity" that the trial court intended it to be a final judgment as to all claims and parties. See Lehmann, 39 S.W.3d at 192-93, 200 ("The intent to finally dispose of the case must be unequivocally expressed in the words of the order itself."); Am. Heritage Capital, LP v. Gonzalez, 436 S.W.3d 865, 869-72 (Tex. App.—Dallas 2014, no pet.) (order did not contain clear indication trial court intended to dispose of entire case and intent to dispose of whole case not unequivocally expressed in words of order itself where word "final" did not appear and order did not contain statement "that it finally dispose[d] of all claims and all parties" (internal quotations omitted)); cf. Tex-Fin, 492 S.W.3d at 436-37 (order stating "[t]his is a final judgment; it disposes of all claims and parties, and is appealable" contained clear and unequivocal finality language (internal quotations omitted)).
However, the record does reveal that the trial court's August 14, 2015 order actually disposed of all pending parties and claims despite the court's omission of any unequivocal finality language. See Lehmann, 39 S.W.3d at 192-93, 200, 204 (judgment final regardless of its language if it actually disposes of all claims and parties then before court); see also Alaniz v. O'Quinn Law Firm, No. 01-14-00027-CV, 2015 WL 6755614, at *3 (Tex. App.—Houston [1st Dist.] Nov. 5, 2015, no pet.) (mem. op.) (analyzing whether order actually disposed of all pending parties and claims in record after noting it did not contain finality language or clear indication trial court intended order to completely dispose of entire case).
As noted above, Galbraith brought four claims against Williams, and Williams, pursuant to Chapter 95, sought summary judgment on each of Galbraith's claims. The trial court, in its August 14, 2015 order, granted Williams's summary-judgment motion in its entirety, disposing of all claims against all parties. Thus, the August 14, 2015 order is a final judgment. Lehmann, 39 S.W.3d at 192-93, 200 (judgment disposing of all parties and claims final regardless of its language); Henderson v. S. Farm Bureau Ins. Co., 370 S.W.3d 1, 4 (Tex. App.—Texarkana 2012, pet. denied) ("A final judgment is one that disposes of all parties and all issues in a lawsuit."); cf. Miner Dederick Constr., LLP v. Gulf Chem. & Metallurgical Corp., 403 S.W.3d 451, 461-62 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) (judgment not final where record showed at time trial court signed summary-judgment orders plaintiff's breach-of-warranty and contract claims remained pending).
Galbraith argues that the trial court's August 14, 2015 order cannot be final because the trial court struck all finality language from the order. However, there are no "magic words" that automatically render an order final. See Lehmann, 39 S.W.3d at 205 (order does not dispose of all claims and all parties merely because entitled "final," or word "final" appears elsewhere, and language "plaintiff take nothing [on] his claims against X" not necessarily dispositive on issue of finality either (internal quotations omitted)); Tex-Fin, 492 S.W.3d at 436 (noting no particular language required). And although the trial court did not explicitly state in its August 14, 2015 order that it was dismissing with prejudice "all of the claims brought by Charles Galbraith against Williams Companies, Inc., Williams Gas Pipeline Company, and Transcontinental Gas Pipe Line Company, LLC," this is not dispositive of the issue of finality. See Lehmann, 39 S.W.3d at 192-93, 200, 205; see also Breitling Oil & Gas Corp. v. Petroleum Newspapers of Alaska, LLC, No. 05-14-00299-CV, 2015 WL 1519667, at *4 (Tex. App.—Dallas Apr. 1, 2015, pet. denied) (mem. op.) ("[T]he order's recitation that it is 'final and appealable' does not necessarily make it so."); Forest N./Springwoods Co-Op. Recreation Ass'n v. City of Austin, No. 03-12-00529-CV, 2013 WL 3336863, at *2-3 (Tex. App.—Austin June 27, 2013, no pet.) (mem. op.) (language in order "that 'all Plaintiff's claims against the Defendants are dismissed with prejudice'" not dispositive). As the supreme court has explained, a judgment is final only if it actually disposes of all claims and parties then before the court; the specific language used by the trial court is not determinative. See Lehmann, 39 S.W.3d at 192-93, 200.
In regard to Galbraith's assertion that the trial court granted summary judgment only as to his claims against Transcontinental Gas Pipe Line Company, LLC, the trial court actually granted, in its entirety, the defendants' joint summary-judgment motion. In fact, the trial court, in its order, specifically listed each defendant by name, stating, "Defendants Williams Companies, Inc., Williams Gas Pipeline Company, and Transcontinental Gas Pipe Company, LLC's Traditional and No Evidence for Summary Judgment is GRANTED." The record does not establish that the trial court limited its summary-judgment ruling solely to the claims brought by Galbraith against Transcontinental Gas Pipe Line Company, LLC.
Finally, although Galbraith focuses on the fact that Williams, on September 2, 2015, after the trial court had signed its August 14, 2015 order, filed a Motion for Entry of Judgment, we cannot conclude that the parties' conduct following the August 14, 2015 order indicates that the order was interlocutory. See id. at 203 (when resolving finality issue court considers language of order, record, and "on occasion" conduct of parties (internal quotations omitted)). In its Motion for Entry of Judgment, Williams explained that the trial court, in the August 14, 2015 order, granted its summary-judgment motion based on Chapter 95, which barred all of Galbraith's claims against it, and "disposed of all claims against all parties." Williams, however, noted that, at the time it filed its Motion for Entry of Judgment, the instant case was still set on the trial court's docket for a jury trial to begin on September 8, 2015. Thus, Williams requested "entry of a final judgment."
This Court previously addressed a similar situation in Penny. There, Brian and Cynthia Penny (the "Pennys") brought premises liability claims against Shell Oil Products Company, L.L.C., Shell Deer Park, Shell Oil Company, Shell Chemical Company, and Equilon Enterprises, L.L.C. (collectively, "defendants") for injuries Brian sustained. Penny, 363 S.W.3d at 696. After the Pennys filed suit, Helmsman Management Services, Inc. intervened, asserting rights of subrogation. Id. In June 2009, all defendants, except for Shell Deer Park, moved for summary judgment, and the trial court granted summary judgment on all claims brought against them by the Pennys. Id. In December 2009, Shell Deer Park then moved for summary judgment, and the trial court granted it summary judgment on all claims brought against it by the Pennys. Id. Then, in February 2010, the defendants moved for summary judgment on Helmsman Management Services, Inc.'s claims of subrogation, and the trial court granted summary judgment on March 15, 2010. Id.
Following the trial court's March 15, 2010 order, the defendants, on March 24, 2010, filed a Motion for Clarification and/or Entry of Final Judgment, asserting that the trial court had granted summary judgment in favor of them on all of the Pennys' and Helmsman Management Services, Inc.'s claims and the trial court's March 15, 2010 order had "disposed of the remaining claims in th[e] lawsuit." Id. (internal quotations omitted). Thus, according to the defendants, the trial court's March 15, 2010 order was a final judgment, disposing of all claims and parties, and they requested that the docket sheet indicate that a final judgment had been entered or, in the alternative, that the trial court enter final judgment in their favor. Id. On April 20, 2010, the trial court signed another order, entitled Final Summary Judgment, which stated: "After considering Defendants' Motion for Summary Judgment on all Claims, the response, if any, [and] the arguments of counsel, if any, the court: GRANTS Defendants['] Motion for Summary Judgment and ORDERS that judgment be entered in favor of Defendants. All relief not granted in this judgment is denied." Id. at 697 (alteration in original) (internal quotations omitted).
In determining our jurisdiction on appeal, we held that the trial court's March 15, 2010 order constituted a final judgment because it disposed of all claims and parties. Id. at 697. Although the defendants had filed, after the trial court's March 15, 2010 order, a Motion for Clarification and/or Entry of Final Judgment, we noted that the motion simply asserted that the March 15, 2010 order was actually a final judgment and that no parties or claims remained outstanding. Id. at 698. In other words, the defendants, through their motion, were not seeking a modification of the trial court's judgment, but rather a correction of the docket. Id. Essentially, the defendants' motion sought "only recognition . . . of what they already had: a final judgment in their favor on all claims." Id. And the defendants' request for the trial court to render a final judgment was not a request for a substantive change, but instead was premised on the fact that they believed a final judgment had already been rendered. Id. Finally, we noted that the trial court's subsequent April 20, 2010 order, which purported to be a final judgment, only attempted to "grant what had already been granted: summary judgment on all claims brought against the defendants." Id.
In the instant case, after the trial court signed its August 14, 2015 order granting Williams summary judgment and disposing of all parties and claims, Williams filed its Motion for Entry of Judgment, seeking only recognition of what it already had, i.e., a final judgment in its favor, and a correction to the trial court's docket, which still indicated that the case was set for trial on September 8, 2015. In Williams's later filed Notice of Withdrawal of Defendants' Motion for Entry of Final Judgment, Williams again reiterated that the trial court's August 14, 2015 order disposed of all claims against all parties and its motion had been filed "solely to facilitate [the] removal of the case from the trial [court's] docket," which had since occurred. Finally, the trial court's subsequent December 18, 2015 order, which Galbraith asserts is the final judgment in this case, purported to do nothing more than what had already been previously done by the trial court, i.e., to grant Williams summary judgment on all claims brought against it by Galbraith. The parties' conduct in this case did not render the trial court's August 14, 2015 order interlocutory.
Having concluded that the trial court's August 14, 2015 order constituted a final judgment, we now consider whether Galbraith timely filed his notice of appeal. See TEX. R. APP. P. 25.1, 26.1. Generally, to confer jurisdiction on an appellate court, a notice of appeal must be filed within thirty days after the date a final order is signed. See TEX. R. APP. P. 25.1(b), 26.1; Brown Mech. Servs., Inc. v. Mountbatten Sur. Co., 377 S.W.3d 40, 42 (Tex. App.—Houston [1st Dist.] 2012, no pet.); Penny, 363 S.W.3d at 697. The deadline to file a notice of appeal is extended to ninety days after the date the order is signed if any party, within thirty days after the judgment is signed, timely files a motion for new trial, motion to modify or reinstate, or, under certain circumstances, a request for findings of fact and conclusions of law. TEX. R. APP. P. 26.1(a); Penny, 363 S.W.3d at 697.
Similarly, the trial court retains plenary power over a case for thirty days after it has signed a final judgment. TEX. R. CIV. P. 329b(d); Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 310 (Tex. 2000); Penny, 363 S.W.3d at 697. This period can be extended up to an additional seventy-five days, however, upon the timely filing of a motion for new trial or motion to correct, modify, or reform the judgment. TEX. R. CIV. P. 329b(c), (e), (g); Lane, 10 S.W.3d at 310. If the judgment is modified while the trial court has plenary power, the appellate timetable is restarted when the new judgment is signed. TEX. R. CIV. P. 329b(h). However, any modified, corrected, or reformed judgment signed after the trial court's plenary power has expired is void. TEX. R. CIV. P. 329b(f); Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995); Penny, 363 S.W.3d at 697; Malone v. Hampton, 182 S.W.3d 465, 468 (Tex. App.—Dallas 2006, no pet.).
As noted above, the trial court's August 14, 2015 order was a final judgment. The next order issued by the trial court was signed on December 18, 2015—126 days later. Therefore, unless some other action was taken to extend the trial court's plenary power, this order, purporting to also render final judgment, was signed outside the court's plenary power and is void. See TEX. R. CIV. P. 329b(c)-(g); Latty, 907 S.W.2d at 486; Penny, 363 S.W.3d at 697-98; Malone, 182 S.W.3d at 468.
We note that on September 2, 2015, after the trial court had signed its August 14, 2015 final order, but before its plenary power had expired, Williams filed a Motion for Entry of Judgment, which Galbraith asserts constituted a motion to modify. See TEX. R. CIV. P. 329b(g). As discussed above, Williams's Motion for Entry of Judgment unequivocally asserted that the trial court, by virtue of its August 14, 2015 order, had "disposed of all claims and all parties." Williams's only complaint raised in its motion was the fact that the case still remained set for a jury trial on the trial court's docket. Notably, Williams, in its motion, did not seek modification of the trial court's August 14, 2015 order. In fact, as of August 14, 2015, Williams had received all of the relief that it had sought from the trial court. Its Motion for Entry of Judgment did not seek any further relief, only recognition of what it already had: a final judgment in its favor on all claims brought against it by Galbraith.
As we explained in Penny, such a motion does not qualify as a deadline-extending motion. Penny, 363 S.W.3d at 698. It is not a motion for new trial. Id.; see TEX. R. CIV. P. 329b(e) (providing motion for new trial extends trial court's plenary power); TEX. R. APP. P. 26.1(a)(1) (providing motion for new trial extends deadline for parties to file notice of appeal). Nothing in the motion suggests that Williams sought to re-litigate any issue already resolved by the trial court. See Penny, 363 S.W.3d at 698.
Further, Williams's motion was not a motion to vacate, modify, correct, or reform the trial court's August 14, 2015 order. Id.; see TEX. R. CIV. P. 329b(g) (providing motion to vacate, modify, correct, or reform judgment extends trial court's plenary power); TEX. R. APP. P. 26.1(a)(2) (providing motion to modify judgment extends deadline for parties to file notice of appeal). As the supreme court has explained, a "postjudgment motion that seeks a substantive change in an existing judgment qualifies as a motion to modify under [r]ule 329b(g)," and such a motion extends the trial court's plenary power and the appellate time table. Lane Bank, 10 S.W.3d at 314; see also Penny, 363 S.W.3d at 698. However, Williams, in its Motion for Entry of Judgment, did not seek any change to the trial court's August 14, 2015 order. See Penny, 363 S.W.3d at 698. And its request for the trial court to render a final judgment did not actually ask for any substantive change; the request was based on the fact that Williams believed that a final judgment already existed in the case. Id. Williams's only complaint raised in its Motion for Entry of Judgment was that the case was still set for a jury trial on the trial court's docket. As we stated in Penny, a motion to correct an error regarding the trial court's docket has no effect on the trial court's plenary power or the parties' appellate deadlines. Id. at 698-99.
Finally, even were we to assume that Williams's Motion for Entry of Judgment actually constituted a motion to modify, as Galbraith asserts, we note that it was withdrawn by Williams prior to any ruling by the trial court on the motion and more than thirty days after the trial court signed its August 14, 2015 final order. Thus, upon Williams's withdrawal of its motion, the trial court immediately lost its plenary power over the case. See Rogers v. Clinton, 794 S.W.2d 9, 11 (Tex. 1990); In re P.M.G., 405 S.W.3d 406, 414 (Tex. App.—Texarkana 2013, orig. proceeding); In re Dilley Indep. Sch. Dist., 23 S.W.3d 189, 191 (Tex. App.—San Antonio 2000, orig. proceeding) ("If a party withdraws a motion for new trial, the period of time for the trial court's plenary power reverts back to thirty days from the date the judgment is signed."), abrogated in part by In re Schmitz, 285 S.W.3d 451 (Tex. 2009) (orig. proceeding).
We likewise note that Galbraith's Motion for Docket Control Conference filed on November 12, 2015, ninety days after the trial court's August 14, 2015 order, had no effect on the trial court's plenary power or his appellate deadlines. As previously stated, a trial court retains plenary power over a case for thirty days after it has signed a final judgment. TEX. R. CIV. P. 329b(d); Lane, 10 S.W.3d at 310; Penny, 363 S.W.3d at 697. Because Williams's Motion for Entry of Judgment had no effect on the trial court's plenary power, it expired on September 14, 2015. See TEX. R. CIV. P. 329b(d); Lane, 10 S.W.3d at 310; Penny, 363 S.W.3d at 697; see also TEX. R. CIV. P. 4 (computation of time). Galbraith's Motion for Docket Control Conference was filed more than thirty days after the trial court had signed its order granting Williams summary judgment and disposing of all claims and all parties, and it cannot be used to revive the trial court's plenary power over the case or extend his deadline for filing an appeal. TEX. R. APP. P. 26.1(a) (notice of appeal deadline extended by timely filed motion); L.M. Healthcare, Inc. v. Childs, 929 S.W.2d 442, 444 (Tex. 1996) (only timely filed motions extend the trial court's plenary power); Penny, 363 S.W.3d at 697-99.
In sum, the trial court's order disposing of all claims and all parties on August 14, 2015 was a final judgment. Neither Williams's Motion for Entry of Judgment nor Galbraith's Motion for Docket Control Conference had any effect on the trial court's plenary power or the parties' appellate deadlines. The trial court's plenary power expired on September 14, 2015. See TEX. R. CIV. P. 4, 329b(d); Lane, 10 S.W.3d at 310; Penny, 363 S.W.3d at 697. Thus, the trial court's December 18, 2015 order, purporting to be a final judgment, but signed after the trial court's plenary power had expired, is void. See TEX. R. CIV. P. 329b(f); Latty, 907 S.W.2d 486; Penny, 363 S.W.3d at 697-98. Further, because no party, within thirty days of the final judgment, timely filed a motion for new trial, motion to modify or reinstate, or a request for findings of fact and conclusions of law, the deadline for Galbraith to file his notice of appeal was September 14, 2015. See TEX. R. APP. P. 4.1(a) (computing time), 26.1; Penny, 363 S.W.3d at 697; Brown Mech., 377 S.W.3d at 42. Galbraith filed his notice of appeal on December 18, 2015, ninety-five days after it was due. TEX. R. APP. P. 4.1(a), 26.1. "A party who is uncertain whether a judgment is final must err on the side of appealing or risk losing the right to appeal." Lehmann, 39 S.W.3d at 196. Accordingly, we hold that Galbraith's notice of appeal was untimely filed, and we dismiss this appeal for lack of jurisdiction. See TEX. R. APP. P. 25.1(b), 26.1, 42.3(a), 43.2(f); see also Penny, 363 S.W.3d at 699.
Conclusion
We dismiss the appeal for lack of jurisdiction.
Terry Jennings
Justice Panel consists of Justices Jennings, Keyes, and Brown.