Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 296th Judicial District Court Collin County,
Texas Trial Court Cause No. 296-04473-2016
Chief Justice Wright, Justice Evans, and Justice Brown
CAROLYN WRIGHT CHIEF JUSTICE
letter dated March 28, 2018, the Court questioned its
jurisdiction over this appeal as the notice of appeal
appeared to be untimely. At our request, the parties filed
letter briefs addressing our concern. We now dismiss this
appeal for want of jurisdiction.
filed suit against appellant Julian Ross and Oxysure
Therapeutics, Inc. Oxysure Therapeutics subsequently filed a
petition in bankruptcy. Appellees obtained a default judgment
against Ross only and then nonsuited their claims against
Oxysure Therapeutics. On March 14, 2017, the trial court
signed a final judgment conforming appellees' default
judgment against appellant and dismissing their claims
against Oxysure Therapeutics. Nearly six months later,
appellant filed a notice of restricted appeal. We dismissed
that appeal because appellant had filed a timely motion for
new trial. See Ross v. Spero Holdings, LLC,
05-17-01011-CV, 2017 WL 5167284, at *1 (Tex. App.-Dallas Nov.
7, 2017, no pet.). Appellant then filed a motion in the trial
court requesting a hearing on his motion for new trial. On
February 14, 2018, the trial court signed an order denying
appellant's motion because its plenary jurisdiction had
March 8, 2018, appellant filed a notice of appeal seeking to
appeal the trial court's February 14, 2018 order as well
as its March 14, 2017 final judgment. We subsequently
notified the parties we questioned our jurisdiction over the
appeal. We explained that, as a general rule, there can only
be one final judgment in a case. See Tex.R.Civ.P. 301;
Icon Benefit Administrators II, L.P. v. Mullin, 405
S.W.3d 257, 261 (Tex. App.-Dallas 2013, no pet.). Because the
trial court signed the final judgment on March 14, 2017,
appellant's March 8, 2018 notice of appeal appeared to be
response, appellant asserts we have jurisdiction over this
appeal because the trial court's judgment is void.
Notwithstanding this argument, even void judgments must be
timely appealed. Brashear v. Victoria Gardens of
McKinney, L.L.C., 302 S.W.3d 542, 546 (Tex. App.- Dallas
2009, no pet.). A party cannot attack a void judgment in an
untimely appeal. See Kenseth v. Dallas Cnty., 126
S.W.3d 584, 596-97 (Tex. App.-Dallas 2004, pet. denied)
(rejecting argument that void order can be challenged by
untimely direct appeal).
discussing this Court's precedent, appellant contends the
Texas Supreme Court has held a "final" judgment
rendered in violation of a bankruptcy stay cannot operate as
a "final appealable order." Appellant cites
Hood v. Amarillo Nat'l Bank, 815 S.W.2d 545, 546
(Tex. 1991) to support this assertion. In Hood, the
trial court signed a judgment after one of the defendants
filed for bankruptcy and while the bankruptcy stay was in
effect. Id. The Supreme Court held that judgment was
not "final and appealable, " but not because it was
rendered in violation of the bankruptcy stay. Rather, the
Supreme Court held the trial court's judgment was not
final and appealable because the trial court did not purport
to dispose of the plaintiff's claims against the debtor.
See id at 546-47. Thus, Hood does not
support appellant's assertion.
invoke this Court's jurisdiction, a party must file a
timely notice of appeal. See Tex. R. App. P.
25.1(b); Harris v. HSBC Bank, 369 S.W.3d 917, 918
(Tex. App.-Dallas 2012, no pet.). Because the trial
court's March 14, 2017 judgment purported to dispose of
all parties and claims, it was a final judgment, regardless
of whether it was void. See Brashear, 302 S.W.3d at
546 (concluding appellant was required to timely appeal
judgment entered during automatic bankruptcy stay). Because
appellant filed a timely motion for new trial, his notice of
appeal was due no later than June 12, 2017, ninety days after
the trial court signed the judgment. See Tex. R.
App. P. 26.1(a)(1). Appellant did not file his notice of
appeal until March 8, 2018. Accordingly, we dismiss this
appeal for want of jurisdiction.
accordance with this Court's opinion of this date, the
appeal is DISMISSED for want of
ORDERED that appellees SPERO HOLDINGS, LLC,
A NEVADA LIMITED LIABILITY COMPANY, AND DANIEL JAMES
MANAGEMENT, INC., A NEVADA CORPORATION recover their ...