Appeal Dismissed and Memorandum Opinion filed August 22, 2019.

In The 

Fourteenth Court of Appeals 

NO. 14-19-00251-CV

DARYL BARNES AND DEMEATRICE GOFF, Appellants 

V.

RENTERS WAREHOUSE PROFESSIONAL LANDLORDS OF HOUSTON, 

Appellee 

On Appeal from the 334th District Court 

Harris County, Texas 

Trial Court Cause No. 2018-60432 

MEMORANDUM OPINION 

This is an attempted appeal from an order signed by the trial court on February 

25, 2019, regarding the motion to reinstate filed by plaintiffs/appellants Daryl 

Barnes and Demeatrice Goff (“Order Regarding Reinstatement”). 
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BACKGROUND

Plaintiffs initiated the underlying suit on September 6, 2018 by filing an 

original petition seeking to enjoin defendant Renters Warehouse Professional 

Landlords of Houston from evicting them. They also filed an affidavit of inability to 

pay costs. The trial court granted a temporary restraining order the following day 

and scheduled a hearing for September 21, 2018. Because defendant had not been 

served by September 21, 2018, plaintiffs passed that hearing. Service was made on 

October 3, 2018. 

The trial court signed a second temporary restraining order on October 18, 

2018 and scheduled a hearing for October 26, 2018. On the day of the hearing, 

defendant answered and moved to dissolve the temporary restraining order. 

Following an October 30, 2018 hearing on defendant’s motion, the trial court signed 

an order dissolving the temporary restraining order. 

On November 14, 2018, plaintiffs set a hearing for their “Application for 

Court of Inquiry,” which they had filed on October 3, 2018. The hearing was 

scheduled for November 16, 2018. Plaintiffs failed to appear for that hearing. The 

trial court signed an order that day dismissing the case for want of prosecution 

(“Order of Dismissal”). The Order of Dismissal states in its entirety: “The above 

referenced case is hereby Dismissed for Want of Prosecution for Plaintiffs[’] failure 

to attend the hearings scheduled for November 16, 2018 in this cause.”

Plaintiffs filed a motion to reinstate on January 10, 2019, and they filed 

another one on January 25, 2019. They set the latter motion motions to be heard on 

February 25, 2019. The motion was not heard, but it is unclear if plaintiffs passed 

the hearing or the trial court cancelled it in light of signing the Order Regarding 

Reinstatement. In the Order Regarding Reinstatement, the trial court concludes: 

Plaintiffs’ Motion [to Reinstate] had to be filed within 30 days of the 
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[November 16, 2018] dismissal and is accordingly untimely filed. For 

that reason, the Court’s power to grant plaintiffs the relief they seek has 

expired and thus can not be granted. 

It appeared the Order of Dismissal was the appealable order, even though 

plaintiffs appealed from the Order Regarding Reinstatement. However, the Order 

Regarding Dismissal lacks decretal language.1

 We abated the appeal on June 11, 

2019, to permit clarification by the trial court as to whether the Order of Dismissal 

was intended to be final. See Tex. R. App. P. 27.2; Lehmann v. Har-Con Corp., 39 

S.W.3d 191, 206 (Tex. 2001). 

The trial court signed an order on July 15, 2019 (“the Order Regarding 

Finality”). The Order Regarding Finality indicates a hearing was scheduled to occur 

on June 28, 2019, in response to our abatement order, but plaintiffs did not appear. 

After recounting the procedural history of the case, the trial court concludes in the 

Order Regarding Finality: “To the extent, the Court of Appeals remains uncertain of 

this Court’s intent, the Court opines that [the Order of Dismissal] was final.” 

ANALYSIS

A judgment is final if it disposes of all parties and claims. Lehmann, 39 

S.W.3d at 195. Because a final judgment need not be in any particular form, whether 

a judicial decree is a final judgment must be determined from its language and the 

record in the case. Id.

The Order of Dismissal states the “case” is dismissed for want of prosecution. 

Plaintiffs and defendant are the only parties in the case, so dismissal of the case 

 

1

 In the Order Regarding Dismissal, the trial court does not assess costs, another indicator of the 

finality of the Order Regarding Dismissal. However, plaintiffs filed an affidavit of inability to pay 

costs, and no order requiring them to pay costs under Texas Rule of Civil Procedure 145 appears 

to have been signed. Without such an order, plaintiffs cannot be required to pay costs. See Tex. R. 

Civ. P. 145(f). A provision in a judgment requiring them to pay costs would be void. See Tex. R. 

Civ. P. 145(j). 
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necessarily disposes of all parties. Likewise, the Order of Dismissal does not limit 

dismissal to a particular claim, so dismissal of the “case” disposes of all claims. We 

conclude the Order of Dismissal is a final judgment. See Brashear v. Victoria 

Gardens of McKinney, L.L.C., 302 S.W.3d 542, 546 (Tex. App.—Dallas 2009, no 

pet.) (“On its face, the trial court’s . . . dismissal order disposed of all claims and all 

parties by dismissing the case for want of prosecution. . . . [T]he dismissal order was 

a final judgment that triggered Brashear’s appellate deadlines. . . .”); 2000 IIG, Inc. 

v. Rockfort Builders, Inc., No. 14-17-00009-CV, 2018 WL 2106601, at *2 (Tex. 

App.—Houston [14th Dist.] May 8, 2018, no pet.) (mem. op.) (concluding order of 

dismissal disposing all remaining claims and counterclaims for want of prosecution 

was final and appealable order). 

A motion for reinstatement following a dismissal for want of prosecution is 

governed by Texas Rule of Civil Procedure 165a(3). A motion for reinstatement 

must be filed within 30 days after the order of dismissal is signed or within the period 

provided by Rule 306a. Tex. R. Civ. P. 165a(3). Rule 306a provides a procedure for 

extending appellate deadlines when a party did not receive notice of a judgment or 

appealable order. See generally Tex. R. Civ. P. 306a. There is no suggestion in the 

record that plaintiffs complied with the procedures of Rule 306a. 

The Order of Dismissal was signed November 16, 2018. The thirtieth day after 

that date was Sunday, December 16, 2018. If the day by which an act must be done 

is a Saturday, Sunday, or legal holiday, the deadline is extended to the end of the 

next day that is not a Saturday, Sunday, or legal holiday. Tex. R. Civ. P. 4.1(b).

Accordingly, a motion to reinstate had to be filed no later than Monday, December 

17, 2018. Appellants’ motion to reinstate, filed January 10, 2019, is untimely. 

Appellants did not file a motion for new trial under Rule 329b. Such a motion also 

was due within 30 days after the Order of Dismissal was signed. Because no motion 
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for new trial was filed, the trial court’s plenary power expired 30 days after the Order 

of Dismissal was signed. 

The notice of appeal must be filed within 30 days after the judgment is signed 

when, as in this case, no timely post-judgment motion is filed. See Tex. R. App. P. 

26.1. Appellants did not file their notice of appeal until March 22, 2019. 

A motion for extension of time is necessarily implied when an appellant, 

acting in good faith, files a notice of appeal beyond the time allowed by Rule 26.1

but within the 15-day grace period provided by Rule 26.3 for filing a motion for 

extension of time. See Verburgt v. Dorner, 959 S.W.2d 615, 617–18 (1997) 

(construing the predecessor to Rule 26). Appellants’ notice of appeal was not filed 

within the 15-day period provided by Rule 26.3.

A court of appeals lacks jurisdiction to hear an appeal that was not timely 

perfected. When the court lacks jurisdiction, it must dismiss the appeal. See Baker 

v. Baker, 469 S.W.3d 269, 272 (Tex. App.—Houston [14th Dist.] 2015, no pet.). 

On July 25, 2019, notification was transmitted to all parties of the court’s 

intention to dismiss the appeal for lack of jurisdiction. See Tex. R. App. P. 42.3(a). 

Appellants filed no response.

The appeal is dismissed for lack of appellate jurisdiction.

 PER CURIAM 

Panel consists of Chief Justice Frost and Justices Wise and Hassan.