Check v. Mitchell, C-7617
| Decision Date | 19 October 1988 |
| Docket Number | No. C-7617,C-7617 |
| Citation | 758 S.W.2d 755 |
| Parties | Austin D. CHECK, Petitioner, v. Lee Roy MITCHELL, et al., Respondents. |
| Court | Texas Supreme Court |
Jody L. McPherson and Randal E. Hand, Clements, Allen & Bufkin, Dallas, for petitioner.
Alvin H. Badger and M. Scott McDonald, Johnson, Bromberg & Leeds, Dallas, for respondents.
Michael L. Neary sued Austin D. Check alleging breach of contract under a promissory note as well as several other causes of action. Neary later assigned all his rights in the action to Mitchell. The trial court rendered an interlocutory summary judgment in favor of Neary on the note claim only. On February 26, 1987 the trial court rendered an amended and supplemental interlocutory summary judgment and on the same day severed that judgment from the remainder of the case. On March 9, 1987, 11 days later, the trial court rendered a judgment which varied from the February 26 judgment in that, among other things, the docket number was changed to the new number assigned in the severance order, it reflected that a severance had been ordered and language was added to the effect that all writs and processes might issue and that all relief not expressly granted was denied. Check filed a motion for new trial on March 18, 1987 and deposited cash in lieu of an appeal bond on June 4, 1987. Without an opinion, the court of appeals dismissed this appeal for want of jurisdiction.
The cash deposit was filed 87 days after the March 9 judgment was signed and 98 days after the February 26 interlocutory judgment became final by virtue of the severance order. Thus, if the appellate timetable runs from the March 9 judgment, Check's cash deposit was timely and the jurisdiction of the court of appeals was not defeated. The issue before this court is whether Rule 329b(h) of the Texas Rules of Civil Procedure operates to postpone the commencement of the appellate timetable when a trial court modifies a final judgment during the period in which it retains plenary power over the judgment.
Rule 329b(d) and (e) provide that the trial court has plenary power to vacate, modify, correct or reform its judgment within thirty days after the judgment is signed or thirty days after all timely motions for new trial are overruled. TEX.R.CIV.P. 329b(d), (e). Subsection (h) of Rule 329b provides that "[i]f a judgment is modified, corrected or reformed in any respect, the time for appeal shall run from the time the modified, corrected or reformed judgment...
To continue reading
Request your trial
- Clint Indep. Sch. Dist. v. Marquez
-
In re Baylor Medical Center at Garland
...Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 391 (Tex. 2008). 21. TEX.R. CIV. P. 329b(h) (emphasis added). 22. See Check v. Mitchell, 758 S.W.2d 755, 756 (Tex.1988) ("We hold that any change, whether or not material or substantial, made in a judgment while the trial court retains plenar......
-
Arkoma Basin Expl. v. Fmf Associates 1990-a
...1991) (per curiam). 42. See Pope v. Wedgeworth, 221 S.W. 950, 951 (Tex. Comm'n App.1920, holding approved). 43. Check v. Mitchell, 758 S.W.2d 755, 756 (Tex.1988) (per curiam) (emphasis added). 44. See id. Justice O'NEILL, concurring and dissenting. I agree that Arkoma's reserve estimates ca......
-
Hagood v. Cnty. of El Paso
...to delay the start of the appellate timetables until the date the modified, corrected, or reformed judgment is signed. Check v. Mitchell, 758 S.W.2d 755, 756 (Tex.1988); see also Clark v. McFerrin, 760 S.W.2d 822, 825 (Tex.App.-Corpus Christi 1988, writ denied) (finding that a reinstated ju......