Appeal from the 308th District Court Harris County, Texas
Trial Court Case No. 2012-33384
consists of Justices Bland, Lloyd, and Caughey.
appeal, appellant Lee Erickson challenged an order signed on
October 2, 2017 dismissing his claims in his petition to
modify custody arrangements. The trial court subsequently
granted a new trial as to Lee's claims, and he now
contends that we lack jurisdiction over the appeal. We agree.
at the time that the court issued its October 2, 2017 order
dismissing Lee's claims, appellee Samantha Erickson's
claims in her counter-petition remained pending. Because the
October 2 order did not adjudicate Samantha's claims and
contained no finality language, it was interlocutory. See
Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205-06 (Tex.
2001) (no final and appealable judgment was rendered because
nothing in order indicated it was final and it did not
dispose of all pending claims and parties).
November 1, 2017, in the lower court, Lee filed a motion for
new trial asking the trial court to reconsider its October 2
order dismissing Lee's claims. On January 19, 2018,
Samantha filed a notice of nonsuit of all claims raised in
her counter-petition. On January 31―within 30 days of
the counter-petition's nonsuit notice―the trial
court granted the motion for new trial as to Lee's
contends the trial court lacked the power on January 31, 2018
to grant Lee's motion for new trial. We disagree.
October 2 order was interlocutory, and the trial court
retained plenary power over the case until at least 30 days
after final judgment disposing of both Lee's claim
and the claims in his counter-petition. See
Tex. R. Civ. P. 329b(d), (e); Lane Bank Equip. Co. v.
Smith S. Equip., Inc., 10 S.W.3d 308, 310 (Tex. 2000)
(trial court retains plenary power for minimum of 30 days
after final judgment). The trial court granted a new trial on
Lee's claim within 30 days of Samantha's notice of
the nonsuit of her counter-petition. The trial court thus
retained plenary power over the action at the time it granted
the new trial. See In re Burlington Coat Factory
Warehouse of McAllen, Inc., 167 S.W.3d 827, 831 (Tex.
2005) (orig. proceeding) ("Because the default judgment
was interlocutory, the trial court retained jurisdiction to
set the judgment aside and order a new trial.");
Lakota Resources, Inc. v. Pathex Petroleum, Inc.,
Nos. 01-07-00369-CV & 01-07-00537-CV, 2008 WL 3522253, at
*2 (Tex. App.-Houston [1st Dist.] Aug. 14, 2008, no pet.)
("As a general rule, a trial court retains plenary power
over its interlocutory orders until a final judgment is
entered. Additionally, a trial court has the inherent
authority to change or modify any interlocutory order until
its plenary power expires."); In re Sierra
Title, Nos. 13-10-055-CV & 13-10-099-CV, 2010 WL
1019632, at *4 (Tex. App.-Corpus Christi March 18, 2010,
orig. proceeding) (because counterclaims remained pending,
order of dismissal was interlocutory and trial court retained
jurisdiction to grant motion to reinstate).
argues that, even if the October 2 order was not a final
judgment, once the appellate court's jurisdiction was
invoked by the filing of a notice of appeal, the trial court
could not modify the October 2 order and thus interfere with
the appellate court's jurisdiction. But an appellate
court's jurisdiction is "invoked upon the filing of
a notice of appeal from either a final judgment that disposes
of all parties and claims or an interlocutory order that the
legislature has deemed appealable." Lane-Valente
Indus. (Nat'l) Inc. v. Land Lease (US) Constr.,
Inc., No. 01-12- 00706-CV, 2013 WL 593701, at * 1 (Tex.
App.-Houston [1st Dist.] Feb. 14, 2013, no pet.) (first
citing Lehmann, 39 S.W.3d at 195; then citing Tex.
Civ. Prac. & Rem. Code § 51.014). Neither applies
Samantha proposes that, even if the trial court had plenary
power over the 2012 cause of action, it did not have power to
grant a new trial in the 2013 cause of action. But both
Lee's original petition and Samantha's
counter-petition were filed in the 2012 cause of action. The
court also granted the motion for new trial in the 2012 cause
agree with Lee that we have no jurisdiction over this appeal.
The October 2 order that Lee initially attempted to appeal
was interlocutory and has now been withdrawn. Absent a final,
appealable judgment, we must dismiss. See Duke v. Am. W.
Steel, LLC, 526 S.W.3d 814, 817 (Tex. App.-Houston [1st
Dist.] 2017, no pet.).
we grant the motion to dismiss. Any pending motions,
including Samantha's emergency ...