                                     NO. 07-07-0237-CV

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL A

                                  SEPTEMBER 27, 2007
                            ______________________________

                            LAURANCE KRIEGEL, APPELLANT

                                               V.

                      JOHNNY ACTKINSON, DISTRICT ATTORNEY
                      PARMER AND BAILEY COUNTIES, APPELLEE
                        _________________________________

              FROM THE 287TH DISTRICT COURT OF PARMER COUNTY;

                  NO. 9451; HONORABLE GORDON H. GREEN, JUDGE
                         _______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                 MEMORANDUM OPINION


      Laurance Kriegel, appearing pro se,1 attempts to appeal an adverse final summary

judgment. Finding we are without jurisdiction, we will dismiss Kriegel’s attempted appeal.


                                         Background


      On October 6, 2006, Kriegel filed his original petition against appellee Johnny

Actkinson, District Attorney of Parmer County, and the case was assigned cause number

      1
          Appellant also appeared pro se as plaintiff in the trial court.
9451. Following Actkinson’s timely answer by general denial, Kriegel filed a traditional

motion for summary judgment but attached no evidence. Subsequently, Actkinson filed

a no-evidence motion for summary judgment on Kriegel’s entire case.


      The trial court heard the parties’ motions for summary judgment on April 10, 2007,

and signed an order on April 12, 2007, denying Kriegel’s motion and granting Actkinson’s

motion. The order concluded “[a]ll relief not expressly granted herein is denied. This

judgment disposes of all parties and all claims in this cause of action and is therefore a

FINAL JUDGMENT.” (Capitalization in original).


       Kriegel filed a document on April 16, 2007, requesting an “extension of time of 30

days to respond to the Courts (sic) Order ‘On Motions for Summary Judgment’ entered on

April 12, 2007.” Kriegel made no additional filings until May 23, 2007, when he filed a

“Motion to Reconsider” the order on summary judgment motions of April 12, 2007. On May

24, 2007, the trial court signed an order denying Kriegel’s motion to reconsider. On June

8, 2007, Kriegel filed a notice of appeal challenging the court’s order denying his motion

to reconsider.


      Kriegel filed a motion to recuse or disqualify the judge of the trial court on June 11,

2007, in cause number 9451. The trial court judge declined recusal and referred the

matter to the presiding administrative judge, who denied Kriegel’s motion by order signed

June 26, 2007. On July 3, 2007, Kriegel filed a notice of appeal regarding the presiding

administrative judge’s decision on Kriegel’s motion to recuse.




                                             2
       After examining the clerk’s record and after obtaining a supplemental clerk’s record,

this Court notified Kriegel by letter of August 17, 2007, that appellate jurisdiction appeared

lacking. Kriegel was afforded thirty days to present a response supporting appellate

jurisdiction. He responded by submitting a copy of his July 3 notice of appeal and a copy

of the index of the clerk’s record.


                                         Discussion


       To be timely, a notice of appeal must be filed within thirty days after the trial court

signs a final judgment unless the complaining party files a designated post-trial motion

within the same thirty-day period.2 Tex. R. App. P. 26.1(a). If an appropriate post-trial

motion is timely filed, a notice of appeal may be filed within ninety days of the date the

judgment was signed. Tex. R. App. P. 26.1(a). If a notice of appeal is not timely filed, the

jurisdiction of the appellate court is invoked only to the extent that the court may determine

its lack of jurisdiction and dismiss the appeal. See In re Simpson, 932 S.W.2d 674, 679

(Tex.App.–Amarillo 1996, no writ); Downs v. Trevathan, 783 S.W.2d 689, 690 (Tex.

App.–Houston [1st Dist.] 1989, orig. proceeding) (under former rule, court of appeals has

no jurisdiction to accept a notice of appeal filed more than fifteen days after it is due);

McDonald & Carlson, Texas Civil Practice Vol. 6 § 13.4 (2d ed. 1998) (“[i]f the right to

appeal is not perfected by the deadline, then the appellate court has no jurisdiction over

the appeal and can only dismiss it.”). Any other action taken by a court without jurisdiction


       2
        Motions extending the appellate timetable are a motion for new trial, a motion to
modify the judgment, a motion to reinstate under Rule of Civil Procedure 165a, and a
request for findings of fact and conclusions of law if required or properly considered by the
appellate court. Tex. R. App. P. 26.1(a).

                                              3
is a nullity.     See In re Frost, 815 S.W.2d 890, 892 (Tex.App.–Amarillo 1991, no writ)

(when a court lacks jurisdiction, any action taken is void). We will determine our jurisdiction

over this appeal, on our own motion and in light of the facts we have recited. See Buffalo

Royalty Corp. v. Enron Corp., 906 S.W.2d 275, 277 (Tex.App.–Amarillo 1995, no writ)

(appellate court must address questions of jurisdiction, sua sponte).


        The appellate timetable for Kriegel began running on April 12, 2007, when the court

signed a final judgment disposing of “all parties and all claims.” See Lehmann v. Har-Con

Corp., 39 S.W.3d 191, 195 (Tex. 2001) (for purposes of appeal, a judgment is final when

it disposes of all claims and parties). Because Kriegel’s cause of action was disposed of

in its entirety by a summary judgment, the due date for his notice of appeal was extended

beyond May 14, 2007,3 only if he timely filed a motion for new trial or to modify the

judgment. Tex. R. Civ. P. 329b; Tex. R. App. P. 26.1(a),(b).4 We find that he did not.


        By his motion filed April 16, 2007, among other relief, Kriegel requested an

additional thirty days to “respond” to the court’s April 12, 2007, order.5 Kriegel’s motion did


        3
         The date thirty days after April 12, 2007, which was May 12, fell on Saturday. The
time to file an appropriate document was therefore extended until Monday, May 14, 2007.
Tex. R. Civ. P. 4.
        4
        This case does not involve either of the other two post-trial filings that extend the
due date for a notice of appeal. Tex. R. App. P. 26.1(a)(3) (motion to reinstate under Tex.
R. Civ. P. 165a), 26.1(a)(4) (request for findings of fact and conclusions of law).
        5
            The body of Kriegel’s April 16, 2007 motion reads, in its entirety, as follows:

                   Motion for Extension of Time to respond to Judges Order
                              On Motions For Summary Judgment

        Plaintiff requests a extension of time of 30 days to respond to the Courts

                                                4
not ask the court to modify or set aside its judgment nor did he ask for another hearing

relitigating the matters decided by the April 12, 2007, summary judgment.


       A motion is judged by its substance and not its heading. Austin Neighborhoods

Coun. v. Bd. of Adjust., 644 S.W.2d 560, 565 (Tex.App.–Austin 1982, writ ref'd n.r.e.);

Mercer v. Band, 454 S.W.2d 833, 835 (Tex.Civ.App.–Houston [14th Dist.] 1970, no writ).

Substance is determined from the body of the instrument and its prayer for relief. Mercer,

454 S.W.2d at 835. In other words, the focus is on how the motion will affect the litigation

if the relief requested is granted. Austin Neighborhoods Coun., 644 S.W.2d at 565.

Reduced to its basic elements, a motion for new trial must ask the court to both set aside

an existing judgment and relitigate the issues. Mercer, 454 S.W.2d at 835; accord, Finley

v. J. C. Pace, Ltd., 4 S.W.3d 319, 320 (Tex.App.–Houston [1st Dist.] 1999, order on mot.).

An instrument that does not comply with these basic requirements is not a motion for new

trial. Mercer, 454 S.W.2d at 835. The document Kriegel filed on April 16, 2007, was not

a motion for new trial or a motion to modify the judgment.


       Assuming, arguendo, that the document Kriegel filed on May 23, 2007, was a

motion for new trial, it was untimely and the trial court had no power to act on it. See Lane



       Order “On Motions For Summary Judgment” entered on April 12, 2007.

       Plaintiff is requesting the recording Secretary of Parmer County District Court
       to transcribe the hearing of April 10, 2007 on cause of action 9451.

       Plaintiff, as of right provided by Judicial practice and procedure, requests the
       transcription to the Courts hearing on April 10, 2007 on cause of action 9451
       to respond to the Order “On Motions For Summary Judgment”.
       (Capitalization, punctuation and wording as in original).

                                              5
Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 310 (Tex. 2000) (absent an

appropriate post-trial motion, a trial court retains plenary jurisdiction to alter its judgment

for thirty days after the date on which the judgment was signed).


       Because Kriegel did not file a notice of appeal within thirty days of judgment6 and

did not file a timely post-trial motion extending the appellate timetable, we are without

jurisdiction in his attempted direct appeal of the summary judgment of April 12, 2007.


       Kriegel’s second notice of appeal, filed following the denial of his request to recuse

the trial judge, does not change our conclusion. Rule of Civil Procedure 18a provides that

an order denying disqualification or recusal is reviewed for abuse of discretion on appeal

from the final judgment. Tex. R. Civ. P. 18a(f). The rule makes no provision for appeal

from an unsuccessful recusal proceeding brought after final judgment, and after expiration

of the trial court’s plenary power over its judgment. See Tex. R. Civ. P. 329b (delineating

trial court’s plenary power).


                                         Conclusion


       Kriegel did not file a notice of appeal within thirty days of judgment nor did he file

a timely post-trial motion capable of extending the appellate timetable. We are without

jurisdiction to review Kriegel’s attempted appeal. Accordingly, it is dismissed.


                                                   James T. Campbell
                                                        Justice


       6
         A notice of appeal filed no later than fifteen days after the deadline for filing may
be timely if the appellant complies with Rule of Appellate Procedure 26.3. See Woodard
v. Higgins, 140 S.W.3d 462, 462 (Tex.App.–Amarillo, no pet.) (applying rule). This rule has
no application here because Kriegel’s notice was filed outside the fifteen-day period.

                                              6
