
In The


Court of Appeals


Ninth District of Texas at Beaumont


____________________


NO. 09-09-00160-CV

____________________


LINCOLN THOMAS, Appellant


V.


ARROW FINANCIAL SERVICES, LLC, Appellee




On Appeal from the 9th District Court
Montgomery County, Texas

Trial Cause No. 08-06-06349 CV




MEMORANDUM OPINION
 Lincoln Thomas filed a notice of appeal but failed to file a brief.  On November 3,
2009, we notified the parties that the brief had not been filed and warned that failure to file
a brief could result in a dismissal of the appeal for want of prosecution.  On January 21,
2010, we notified the parties that the appeal would be submitted to the Court without oral
argument.  See Tex. R. App. P. 39.8.
	We first consider whether we have jurisdiction over the appeal.  The trial court signed
the default judgment on January 6, 2009.  The appellant, Lincoln Thomas, filed a motion for
new trial within thirty days of the date of the judgment.  The motion for new trial was
overruled by operation of law on March 23, 2009.  See Tex. R. Civ. P. 329b(c).  The trial
court's plenary power to grant a new trial or vacate the judgment continued for another thirty
days.  See Tex. R. Civ. P. 329b(e).  On April 6, 2009, the trial court signed an order that
granted the motion for new trial, set aside the default judgment, and reinstated the case on
the trial court's docket.  Thus, the trial court vacated its prior judgment and reinstated the
case while it still had plenary power over the case.  Id. 
	Because the trial court vacated the judgment that Thomas appeals, the judgment is not
a final judgment.  We hold that we lack jurisdiction over the appeal. See Tex. Civ. Prac. &
Rem. Code Ann. § 51.012 (Vernon Supp. 2009) (A person may take an appeal from a final
judgment of a district court.).  Accordingly, the appeal is dismissed. See Tex. R. App. P.
43.2(f).  
	APPEAL DISMISSED.
  
 HOLLIS HORTON
										Justice
 
Submitted on February 11, 2010
Opinion Delivered February 25, 2010 
Before McKeithen, C.J., Gaultney and Horton, JJ.
