                                   NO. 07-06-0254-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                   JULY 24, 2006
                          ______________________________

               JANET K. FERGUSON D/B/A MASTER CLEAN CARPET
                    & UPHOLSTERY CLEANERS, APPELLANT

                                            V.

                       BEST PUBLICATIONS, L.L.P., APPELLEE
                       _________________________________

            FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;

               NO. 56,613-C; HONORABLE PATRICK PIRTLE, JUDGE
                       _______________________________


Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.


                               MEMORANDUM OPINION


      Janet K. Ferguson, d/b/a/ Master Clean Carpet & Upholstery Cleaners, perfected

appeal from a summary judgment in a suit brought by appellee, Best Publications, L.L.P.

This court has received a certified copy of an order granting Ferguson’s motion for new

trial, raising a question concerning our jurisdiction over this appeal. We are obligated to

determine, sua sponte, our jurisdiction over an appeal. New York Underwriters Ins. Co. v.

Sanchez, 799 S.W.2d 677, 678 (Tex. 1990).
       Perfection of appeal does not prevent the grant of a new trial within the time

permitted by Rule of Civil Procedure 329b. Tex. R. Civ. P. 329b(d), (e). Rule 329b(c)

provides a motion for new trial is overruled by operation of law if “not determined by written

order signed within seventy-five days after the judgment was signed.” Rule 329b(e)

extends a trial court’s plenary power to grant a new trial thirty days after any timely filed

motion for new trial is overruled. The limited record before us indicates the challenged

judgment was signed March 30, 2006. Appellant’s motion for new trial was overruled by

operation of law June 13, 2006. By virtue of rules 329b(c) and (e) the trial court had

plenary power to grant a new trial until July 13, 2006. It did so on July 11, 2006.


       The effect of the trial court’s order is to vacate the original judgment, In re Burlington

Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d 827, 831 (Tex. 2005), and put the

case in the position as if there had been no trial. Jordan v. Bustamante, 158 S.W.3d 29,

36 (Tex.App.–Houston [14th Dist.] 2005, pet. denied). Because a final judgment is a

prerequisite to our appellate jurisdiction, Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195

(Tex. 2001), we dismiss the appeal for want of jurisdiction. Tex. R. App. P. 42.3(a).




                                                    Per Curiam




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