Igloo Products Corp. v. Schkerezade Midkiff

Appeal Dismissed and Memorandum Opinion filed August 15, 2019.

In The

Fourteenth Court of Appeals

NO. 14-19-00485-CV

IGLOO PRODUCTS CORP., Appellant V. SCHKEREZADE MIDKIFF, Appellee

On Appeal from the 129th District Court Harris County, Texas Trial Court Cause No. 2015-07161

MEMORANDUM OPINION This is an appeal from a judgment signed March 19, 2019. Appellant timely filed a motion for new trial. If a motion for new trial has not been determined by written order signed within 75 days after the judgment was signed, the motion is considered overruled by operation of law. Tex. R. Civ. P. 329b(c). Seventy-five days after March 19, 2019 was Sunday, June 2, 2019. If the day by which an act must be done is a Saturday, Sunday, or legal holiday, the deadline is extended to the end of the next day that is not a Saturday, Sunday, or legal holiday. Tex. R. Civ. P. 4.1(b).

Therefore, the motion for new trial was overruled by operation of law on Monday, June 3, 2019.

The trial court retained plenary power to grant a new trial for 30 days after the last timely-filed motion for new trial was overruled. Tex. R. Civ. P. 329b(e). Thirty days after June 3, 2019 was July 3, 2019. The trial court signed an order granting appellant’s motion for new trial on June 24, 2019, a date within the 30-day period of Rule 329b(e).

As a result, the judgment on appeal has been vacated. In re E.C., 431 S.W.3d 812, 815–16 (Tex. App.—Houston [14th Dist.] 2014, orig. proceeding [mand. denied]) (“Granting a new trial has the legal effect of vacating the original judgment and returning the case to the trial docket as though there had been no previous trial or hearing.”). Therefore, there is no appealable judgment and we lack jurisdiction to consider this appeal. See Tex. R. App. P. 25.1(b); Stelly v. Citibank (S.D.) N.A., No. 14-07-00601-CV, 2008 WL 2066571, *1 (Tex. App.—Houston [14th Dist.] May 15, 2008, no pet.).

On July 25, 2019, notification was transmitted to all parties of the court’s intention to dismiss the appeal for want of jurisdiction unless appellant filed a response demonstrating grounds for continuing the appeal on or before August 5, 2019. See Tex. R. App. P. 42.3(a). No response was filed.

The appeal is dismissed for lack of jurisdiction.

PER CURIAM

Panel consists of Justices Christopher, Spain, and Poissant.