Dismissed and Memorandum Opinion filed May 5, 2020.

In The

Fourteenth Court of Appeals

NO. 14-19-00259-CV

BILL FONTENOT AND FELICIA FONTENOT, Appellants

V.

LIBERTY MUTUAL INSURANCE COMPANY AND MATTHEW 

GOLDEN, INDIVIDUALLY, Appellees

On Appeal from the 190th District Court

Harris County, Texas

Trial Court Cause No. 2016-19005

M E M O R A N D U M O P I N I O N

This is an attempted appeal from a final summary judgment. Because the 

appellants’ notice of appeal was untimely filed, we dismiss the appeal for want of 

jurisdiction.

The record shows that on November 29, 2018, the trial court signed a final 

judgment granting the motion for summary judgment filed by defendants Liberty 

Insurance Corporation (incorrectly named as Liberty Mutual Insurance Company) 
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and Matthew Golden. Plaintiffs Bill and Felicia Fontenot timely filed a motion for 

reconsideration—in effect, a motion for new trial—on December 31, 2018, and the 

motion was overruled by operation of law. See TEX. R. CIV. P. 4 (computation of 

time); TEX. R. CIV. P. 329b(a) (time for filing motion for new trial); TEX. R. CIV. P. 

329b(c) (motion for new trial overruled by operation of law if not signed within 

seventy-five days of judgment).

The timely filed motion for new trial had two effects on the timelines 

applicable to this case. First, it extended the trial court’s plenary power for thirty 

days after the motion was overruled by operation of law or by a signed order, 

whichever occurred first. See TEX. R. CIV. P. 329b(e). Thus, the trial court retained 

plenary power for thirty days after the motion was overruled by operation of law, 

that is, until March 14, 2019. Second, the motion extended the time for filing a notice 

of appeal, so that the notice was due ninety days after the final judgment was signed, 

that is, on February 27, 2019. See TEX. R. APP. P. 26.1(a)(1). An appellate court may 

extend by fifteen days the deadline for filing a notice of appeal, which would have 

made the Fontenots’ notice of appeal due on March 14, 2019, the same day the trial 

court’s plenary power expired. TEX. R. APP. P. 26.3.

The Fontenots, however, did not file a notice of appeal until March 25, 2019. 

We accordingly notified the parties of our intent to dismiss the appeal for want of 

jurisdiction. See TEX. R. APP. P. 42.3. Although the Fontenots responded to the 

notice, their arguments for jurisdiction lack merit.

The Fontenots contend that, despite its terms, the order granting summary 

judgment was not a final order. But as a matter of law, a judgment that expressly 

disposes of all pending parties and claims is final and appealable. Lehmann v. HarCon Corp., 39 S.W.3d 191, 195, 200 (Tex. 2001). The trial court’s order of 
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November 29, 2018, stated, “This judgment finally disposes of all parties and all 

issues and is appealable”; thus, the order was a final judgment.

The Fontenots next represent that they filed an amended motion for 

reconsideration and that the judgment did not become final until the trial court signed

an order denying their amended motion. That argument fails for three reasons. First, 

there is no such order; the trial court signed an order denying the Fontenots’ original 

motion for reconsideration, not their amended motion. Second, even the order 

denying the Fontenots’ original motion had no effect on the deadline to appeal, 

because the order was signed after the motion already had been overruled by 

operation of law. See TEX. R. CIV. P. 329b(e) (trial court’s plenary power extends 

for thirty days after a timely-filed motion for new trial is overruled by operation of 

law or by a signed order, “whichever occurs first”). Third, an untimely amended 

motion for new trial does not extend the trial court’s plenary power. See In re 

Brookshire Grocery Co., 250 S.W.3d 66, 69–70 (Tex. 2008) (orig. proceeding). An 

amended motion for new trial can be filed without leave of court only “before any 

preceding motion for new trial filed by the movant is overruled and within thirty 

days after the judgment or other order complained of is signed.” TEX. R. CIV. P.

329b(b). The Fontenots’ amended motion for reconsideration met neither 

requirement; it was filed eight-eight days after the judgment was signed, after their 

original motion for new trial was overruled by operation of law. 

Finally, the Fontenots argue that they added Bank of America, N.A. as an 

additional defendant by an amended petition filed on February 25, 2019, and the 

judgment signed three months earlier was not final until they nonsuited Bank of 

America. But, a party can amend its pleadings post-judgment only with the trial 

court’s leave. See TEX. R. CIV. P. 63. The Fontenots neither sought nor obtained the 

trial court’s permission to amend their pleadings. Moreover, they do not contend that 
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the additional defendant was served, waived service, or answered. To the contrary, 

they point out that less than two weeks after filing their unauthorized amended 

petition, they filed a notice of nonsuit with prejudice of all of their claims against 

Bank of America. Thus, the Fontenots’ unilateral post-judgment attempts to add and 

dismiss an additional party does not affect the judgment’s finality. See Youngstown 

Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 232 (Tex. 1962) (judgment treated as 

final because record failed to show that an additional named defendant was served 

or answered); Kennedy v. Turner Ind. Grp., LLC, No. 14-09-00377-CV, 2010 WL 

1541638, at *1 (Tex. App.—Houston [14th Dist.] Apr. 20, 2010, pet. denied) (mem. 

op.) (treating judgment as final, because in appellant’s response to appellate court’s 

notice of intent to dismiss, appellant did not contend that the additional defendants 

“have been or will be served or have filed an answer in the suit”).

Because the notice of appeal was untimely, we lack jurisdiction. We 

accordingly dismiss the appeal without addressing the merits.

/s/ Tracy Christopher

Justice

Panel consists of Justices Christopher, Wise, and Zimmerer.