### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00580- CV

F rancisco Ivarr a, Rebec ca Lugo, Juan Villareal, Neal Z abicki, An ahli Vasq uez,

Willie Galvan, Helen Galvan, and L ee R ivas, App ellants

v. Am eric an GI F orum of the United S tate s, Inc.; G ilberto Rodriguez; Antonio G. Mor ales and Paul Herre ra, Appellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 201 ST JUDICI AL DISTRICT NO. D-1 -GN-1 2-0 0170 0, H ONO RAB LE AMY CLARK MEACH UM, J UDGE P RESIDING

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

On J une 6, 2012, appellee s Gilberto Rodri gu ez , Ant onio G. Morales, and Paul Herr era

sued appe llee Amer ican GI For um of the United States, I nc., (“ GI For um”) a sserting various claims and seeking reinstateme nt of their membership in GI For um and a rela ted Texasbased org anization. The following day , J une 7, 2012, GI For um filed a g ener al denial, and the trial
court signe d an ag ree d final judgme nt that same day

. On J une 29, 2012, the appellants—a minority g roup of board members from GI For um’s National Boa

rd of Direc tors —filed a motion for new 1 trial, claiming that GI For um’s Na t i o nal Commander, Alberto Gonzales, lacke d the authority to

Fr anc i s co I v arra, Rebec ca L ug o, J uan Villarea l, Nea l Z abicki, Anahli Vasque z, 1 Wil lie Galvan, H elen Ga lvan, and L ee Rivas. 1reta in counsel and settle the suit on GI For um’s behalf

. Subsequently , on Aug ust 8, 2012, appellants filed a petition in intervention. Following a hear ing, the trial court denied both the motion for new trial and the petition in intervention on Aug ust 28, 20 1 2

. Ap p el lants filed a notice of appea l on Aug ust 31, 2012. Be cause the notice of appea l was not timely filed by a party of rec ord, we dismiss the appe al for w ant of jurisdiction.

Any party wishing to appea l a trial court’s judgme nt must file a notice of appea l. Tex. R. App. P. 25.1(c). The notice of a ppeal is due within 30 da y s after the judg ment is signed unle ss the trial court’s plenar

y jurisdiction has been extended as provided in the rules of civil and appellate proce dure. Tex. R. App. P. 26.1; see also Tex. R. Civ. P. 329b. I f a party ’s notice of appea l is not timely filed, an appellate court c annot exercise jurisdiction over the party ’s attempted appea l, and the court must dismiss the appea l. Bahar v. L yo n F i n . Servs., Inc. , 330 S.W .3d 379, 386 (Tex. App.—Austin 2010, pet. denied) (citing W agner & Brown, Ltd. v. Horwood , 58 S.W .3d 7 3 2, 737 (Tex. 2001)); Kilroy v. Kilroy , 137 S.W .3d 780, 782 (Tex. App.—Houston [1st Dist.] 2004, no pet.). The issue prese nted in this case is whether the mot i o n fo r n ew trial that the appellants filed on J une 29, 2012, extended the trial court’s plenar y j u risdiction and the time for filing the notice of appea l in this case . We conclude tha t it did not

.

A nonparty may not move for a new trial or file a post-judgme nt motion to extend the court’s plenar

y jurisdiction unless the nonparty succe ssfully i n t er venes. Malone v. Hampton , 182 S.W .3d 465, 468 (Tex. App.—Dallas 2006, no pet.); State & County Mut. Fire Ins. Co. v. Kelly , 915 S.W .2d 224, 227 (Tex. App.—Austin 1996, no writ). A nonparty succe ssfully intervene s if he files a plea in int erve ntion before final judg ment is render ed and the court does not strike t he plea

2on mo t i o n o f a p arty

. Malone , 182 S.W .3d at 468; In re Barrett , 149 S.W .3d 275, 279 (Tex.

App.—Ty ler 2004, orig

. proce eding ). I f a petition in intervention is not filed until afte r the trial court has ren d er ed judgme nt—as is the situation here —the trial court may not consider the plea in intervention unless and until the judgme nt is set a side. Malone , 182 S.W .3d at 468; see also First Alief Bank v. W

hite , 682 S.W .2d 251, 252 (Tex. 1984) (holding trial judge could only v acate, set aside, modi fy , or amend judgme nt for thirty day s afte r i t was signed and obser v i n g t h at “a plea in intervention comes t o o late if filed after judgment and may not be considered unless and unti l the judgme nt has been set aside” ); Comal Cnty. Rural H.S. Dis t. No. 705 v. N elson , 314 S.W .2d 956, 957 (Tex. 1958) (plea in intervention afte r dismiss al order beca me fi n al co u l d not be considere d beca use dismiss al order not set aside while trial court had plenar y jurisdiction). I f no party of rec ord files a motion for new trial, the trial court lacks jurisdiction to g rant the plea in intervention unless the judgme nt is first set aside within thirty day s of rendition. Malone , 182 S.W

. 3 d at 4 6 8 ; Kelly , 915 S.W .2d at 227. “[O]nl y a motion for new trial filed by a party of rec ord automatically extends the trial court’s plenar

y power .” Kelly , 915 S.W .2d at 227 (citing Tex. R. Civ. P. 329b). “A ‘motion for new trial’ filed by a nonparty is simply an u n o ff i ci al plea to the trial court to exercise its discretion allowed under [Tex

. R. Civ. P. 320] to set aside the judgme nt during the court’s plenar y power .” Id. A motion for new trial filed by a nonparty —even if a “nec essar

y party ” to the suit—is ineffe ctive to extend the trial court’ s plenary power . See id. Appellants wer e not parties to the l aw s u it in the court below. Appellants cite no authority —and we have found none—supporting their theory that a non-prof it corpor ation’s board members are considere d to be parties to a lawsuit ag ainst the corpor ation even when not individually

3named and serve d in the lawsuit. Acc ording ly , beca use no party to the suit timely filed a motion for

new trial, the trial court’s plenar y jurisdiction e x pired thirty day s afte r judgme nt w as rende red; the trial court had no jurisdiction to g rant a new trial or a plea i n intervention afte r that date; and the notice of appea l was due thirty day s afte r judgme nt was rende red. Even if appellants, as nonparties, could prosecut e an ap p ea l in the first instance, their notice of appea l was unti mely

. We there fore dismiss the appe al for w ant of jurisdiction.

___________________________________________ J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Goodwin and F ield Dismissed for Want of J urisdiction Filed: May

10, 2013

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