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 is signed. . . ." TEX.R.CIV.P. 329b(h) (1984) (emphasis added). We hold that any change, whether or not material or substantial, made in a judgment while the trial court retains plenary power, operates to delay the commencement of the appellate timetable until the date the modified, corrected or reformed judgment is signed.

While the appeal in this case was taken prior to the 1988 amendments to the Rules of Civil Procedure, the provisions of Rule 329b(h) which are pertinent to this decision were not changed at that time. Therefore, our holding is not limited to appeals taken prior to January 1988; rather, it applies with equal force to appeals brought under the current Rules of Civil Procedure.

The court of appeals order dismissing the appeal for want of jurisdiction is in conflict with Rule 329b(h) of the Texas Rules of Civil Procedure. Therefore, pursuant to Texas Rule of Appellate Procedure 133(b), we grant Check's application for writ of error, and without hearing oral argument, a majority of the court reverses the judgment of the court of appeals dismissing the appeal and remands the cause to the court of appeals for further consideration in accordance with this opinion.

Summaries of

Check v. Mitchell

Supreme Court of Texas

Oct 19, 1988

758 S.W.2d 755 (Tex. 1988)

holding that any modification, even if immaterial or insubstantial, restarts the appellate timetable

Summary of this case from Brighton v. Koss

holding that any modification, even if immaterial or insubstantial, restarts the appellate timetable

Summary of this case from Brighton v. Koss

holding that a modification of the judgment during the court's plenary power operates to delay commencement of the appellate timetable

Summary of this case from Lehmann v. Har-Con

holding that "any change, whether or not material or substantial, made in a judgment while the trial court retains plenary power, operates to delay the commencement of the appellate timetable until the date the modified, corrected or reformed judgment is signed"

Summary of this case from Exxon Corp. v. Garza

holding that any change in judgment, whether material or not, while trial court retains plenary power operates to delay commencement of appellate timetable until date modified, corrected, or reformed judgment signed

Summary of this case from Preston v. American Eagle Ins. Co.

In Check the new judgment varied from the original 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."

Summary of this case from Mackie v. Mckenzie

In Check we held that "any change, whether or not material or substantial, made in a judgment while the trial court retains plenary power, operates to delay the commencement of the appellate timetable until the date the modified, corrected or reformed judgment is signed."

Summary of this case from Mackie v. Mckenzie

In Check, as in this case, the trial court rendered an interlocutory summary judgment and immediately made it final by severing it from the main action.

Summary of this case from Landmark Amer. Ins. v. Pulse Ambulance Service

In Check, the second judgment "varied from" the first judgment by a changed docket number and additional language reflecting a severance order and denying all other relief. Id. at 755-56.

Summary of this case from Vaschenko v. Novosoft, Inc.

In Check, the second judgment "varied from" the first judgment by a changed docket number and additional language reflecting a severance order and denying all other relief. Id. at 755-56.

Summary of this case from Vaschenko v. Novosoft, Inc.

In Check, the Supreme Court held "any change, whether or not material or substantial, made in a judgment while the trial court retains plenary power, operates to delay the commencement of the appellate timetable until the date the modified, corrected or reformed judgment is signed."

Summary of this case from Schroeder v. Haggard

In Check, the court stated that "any change, whether or not material or substantial, made in the judgment while the trial court retains plenary power restarts the appellate timetable."

Summary of this case from Grider v. Naaman

In Check v. Mitchell, 758 S.W.2d 755 (Tex. 1988) (per curiam), the Texas Supreme Court confronted a procedural scenario similar to the one presented here. The trial court entered two orders constituting final judgments and, as in this case, the appellant calculated the appellate timetable from the date of the second order.

Summary of this case from Quanaim v. Frasco Rest

stating that if a judgment is modified, corrected, or reformed in any respect the appellate timetable begins to run as of the date of the correction

Summary of this case from Crown Const Co. v. Huddleston

In Check v. Mitchell, 758 S.W.2d 755 (1988), the Supreme Court laid this question to rest with its interpretation of rule 329b(h).

Summary of this case from Clark v. McFerrin

Check v. Mitchell

Summary

Opinion

Check v. Mitchell

Check v. Mitchell

Case Details

Citations

Citing Cases

Check v. Mitchell

Summary

Opinion

Check v. Mitchell

Check v. Mitchell

Case Details

CitationsCopy Citation

Citing Cases

Citations