# Fourth Court of Appeals

San Antonio, Texas

June 1, 2021

No. 0 4

- 21

- 00135

- CV

Herbert Lawrence POLINARD Jr. and Irene C. Polinard,

Appellants

v.

James Paul TISDEL Jr., Appellee

From the 224th Judicial District Court

, Bexar County, Texas

Trial Court No. 2017

- CI

- 04746 Honorable Mary Lou Alvarez , Judge Presiding



### O R D E R

The trial court rendered a final summary judgment against appellant s , Herbert Lawrence

Polinard Jr. and Irene G. Polinard

, on November 25, 2020. The Polinard s filed a timely motion for new trial. The motion was overruled by operation of law on February 8, 2021. Tex. R. Civ. P.

329b (c). The Polinard s then filed a motion for reconsideration that was set for hearing on March 9, 2021, one day before the trial court’ s plenary power was to expire. See id. 329b(e) . At that hearing, appellant argued the trial court had plenary power to reconsider his arguments and grant

a new trial. The Judge’s Notes, dated March 9 and March 10

, state the trial court granted the

motion for reconsideration and denied the motion for new trial

. 1 The court did not vacate, modify, correct, or reform the November 25, 2020 judgme n t. On April 8, 2021, the Polinard s filed a notice of appeal

, stating their inte n t to appeal “ the District Court’s M arch 10, 2021, Order/Judgment which, inter alia , denied PLAINTIFFS’ Motion for New Trial and, through which, thereby, affirmed a November 25, 2020 summary judgment by default resulting in the subsequent dismissal of PLAINTIFFS’ claims in this matter. ” T he record has been filed and raises an issue regarding our jurisdiction over the appeal

.

The Polinards’ timely filed motion for new trial extended the deadline to appeal the November 25, 2020, judgment until February 23, 2021, ninety days after the judgment was signed. See T EX

. R. A PP

. P. 26.1(a). Because the trial court did not modify, correct, or reform the

November judgment, the timetable for appealing the judgment was not restarted. See T EX

. R.

1 The record does not contain signed written orders.C IV

. P. 329b(h). The trial court’s order denyin g the motion for new trial after reconsideration

(even if written and signed) is not an independently appealable order and did not further extend the deadline to appeal or start a n ew timetable to perfect an appeal from the November judgment

. See Morris v. Wells Fargo Bank, N.A. , No. 01

- 19

- 00610

- CV, 2019 WL 4677365, at *1 (Tex. App.

— Houston [1st Dist.] Sept. 26, 2019 , no pet. ) (mem. op.); State Office of Risk Mgmt. v. Berdan, 335 S.W.3d 421, 428 (Tex. App.

— Corpus Christi 2011, pet. denied ).

Thus, the notice of appeal was due February 23, 2021, or a motion for extension of time to file the notice of appeal was due fifteen days later on March 10. See T EX

. R. A PP

. P. 26.1,

26.3. The Polinards did not file a motion for extension of time to file t he notice of appeal and did not file their notice of appeal until April 8, 2021. A timely notice of appeal must be filed in order to invoke this court’s jurisdiction. See Sweed v. Nye , 323 S.W.3d 873 (Tex. 2010 ). “Once the period for granting a motion for extension of time under Rule [26.3] has passed, a party can no longer invoke the appellate court’s jurisdiction.” See Verburgt v. Dorner , 959 S.W.2d 615, 615 (1997)

.

We therefore order a response due by June 21, 2021 , showing cause why this appeal should not be dismissed for lack of jurisdiction. If appellant s fail to satisfactorily respond within the time provided, the appeal will be dismissed. See T EX

. R. A PP

. P. 42.3(a), (c). Appellant s ha ve the burden to request the trial c ourt clerk prepare a supplemental clerk’s record containing any pleadings and orders necessary to establish this court’s jurisdiction. Appellant s must file a copy of any such request with this court.

All deadlines in this matter are suspended until furthe r order of the court.

_________________________________ Luz Elena D. Chapa, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the s aid
court on this 1st day of June, 2021

.

___________________________________ M ichael A. C ruz , Clerk of Court