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Court of Appeals of Texas, Ninth District, BeaumontFeb 25, 2010
No. 09-09-00160-CV (Tex. App. Feb. 25, 2010)

No. 09-09-00160-CV

Submitted on February 11, 2010.

Opinion Delivered February 25, 2010.

On Appeal from the 9th District Court Montgomery County, Texas, Trial Cause No. 08-06-06349 CV.



Lincoln Thomas filed a notice of appeal but failed to file a brief. On November 3, 2009, we notified the parties that the brief had not been filed and warned that failure to file a brief could result in a dismissal of the appeal for want of prosecution. On January 21, 2010, we notified the parties that the appeal would be submitted to the Court without oral argument. See Tex. R. App. P. 39.8.

We first consider whether we have jurisdiction over the appeal. The trial court signed the default judgment on January 6, 2009. The appellant, Lincoln Thomas, filed a motion for new trial within thirty days of the date of the judgment. The motion for new trial was overruled by operation of law on March 23, 2009. See Tex. R. Civ. P. 329b(c). The trial court's plenary power to grant a new trial or vacate the judgment continued for another thirty days. See Tex. R. Civ. P. 329b(e). On April 6, 2009, the trial court signed an order that granted the motion for new trial, set aside the default judgment, and reinstated the case on the trial court's docket. Thus, the trial court vacated its prior judgment and reinstated the case while it still had plenary power over the case. Id.

Because the trial court vacated the judgment that Thomas appeals, the judgment is not a final judgment. We hold that we lack jurisdiction over the appeal. See Tex. Civ. Prac. Rem. Code Ann. § 51.012 (Vernon Supp. 2009) (A person may take an appeal from a final judgment of a district court.). Accordingly, the appeal is dismissed. See Tex. R. App. P. 43.2(f).