                                                                WITHDRAWN 4-11-13

                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-12-00302-CV

TODD PHILLIPPI,
                                                          Appellant
v.

CITI RESIDENTIAL LENDING, INC., ET AL,
                                                          Appellees



                          From the County Court at Law
                               Ellis County, Texas
                            Trial Court No. C-08-3657


                          MEMORANDUM OPINION


      Appellees Citi Residential Lending, Inc. (Citi) and Deutsche Bank National Trust

Company, as Trustee, in Trust for the Registered Holders of Argent Securities, Inc.

Asset-Backed Pass-Through Certificates, Series 2004-W8 (Deutsche Bank) have filed

motions to dismiss this appeal for want of jurisdiction, arguing that Appellant Todd

Phillippi’s notice of appeal was untimely filed. Because Phillippi did not timely file a

post-judgment motion that extended the appellate timetable, his notice of appeal was

untimely, and we lack jurisdiction.
        The relevant procedural history is as follows:

       On April 2, 2012, the trial court signed an order granting Citi’s no evidence and
        traditional motions for summary judgment. Pursuant to the order, Phillippi took
        nothing by his claims against Citi, and all of Phillippi’s claims against Citi were
        dismissed with prejudice.

       On April 26, 2012, the trial court signed an order granting Deutsche Bank’s
        motion for summary judgment. Pursuant to the order, Phillippi took nothing by
        his claims against Deutsche Bank, and all claims against Deutsche Bank were
        dismissed with prejudice.

       On May 2, 2012, Phillippi filed a “Motion to Set Aside or Rehearing on Order of
        Summary Judgment.” Phillippi requested in the motion that Citi’s summary
        judgment be set aside and that he be granted a new trial because he was not
        properly served and thus had no notice of Citi’s motions for summary judgment
        or of the summary judgment hearing.

       On May 11, 2012, the trial court signed an order granting Deutsche Bank’s
        motion to dismiss without prejudice, which dismissed without prejudice
        Deutsche Bank’s counterclaims. The order also stated: “It is further ordered the
        summary judgments entered in favor of Citi . . . on April 2, 2012 and
        Defendant/Counter-plaintiff Deutsche Bank . . . on April 26, 2012 are now final.”
        This order was the final judgment for appellate purposes. See Jack B. Anglin Co. v.
        Tipps, 842 S.W.2d 266, 272 (Tex. 1992) (“A final judgment is one which disposes
        of all legal issues between all parties.”).

       On June 13, 2012, Phillippi filed a “First Amended Motion to Set Aside or
        Rehearing on Order of Summary Judgment(s).” Phillippi requested in the
        motion that the final judgment, which finalized the earlier summary judgments
        in favor of Citi and Deutsche Bank, be set aside and that he be granted a new trial
        because of the service issues referred to above.

       On August 13, 2012, Phillippi filed his notice of appeal with the trial court clerk.
        The notice states: “Plaintiff in this matter, TODD PHILLIPPI hereby Appeals the
        final orders in this cause. The matter having been finally order [sic] on May 14,
        2012. This Appeal being timely filed all matters of Summary Judgment and final
        Orders dispensing with this Cause are hereby Appealed.”1



1 Phillippi stated in his First Amended Motion to Set Aside or Rehearing on Order of Summary
Judgment(s) and in his Notice of Appeal that the trial court entered the final judgment on May 14;
however, the order was signed on May 11. It was later filed by the trial court clerk on May 14.

Phillippi v. Citi Residential Lending, Inc.                                                Page 2
        Generally, a notice of appeal is due within thirty days after the judgment is

signed. TEX. R. APP. P. 26.1. The deadline to file a notice of appeal is extended to ninety

days after the date the judgment is signed if any party timely files a motion for new trial,

motion to modify the judgment, motion to reinstate, or, under certain circumstances, a

request for findings of fact and conclusions of law. TEX. R. APP. P. 26.1(a). The appellate

court may extend the time to file the notice of appeal if, within fifteen days after the

deadline for filing the notice of appeal, the party files the notice of appeal in the trial

court and files a motion for extension of time to file the notice of appeal in the appellate

court. TEX. R. APP. P. 26.3. Furthermore, if the notice of appeal is filed within fifteen

days of the date the notice was due but a motion for extension of time to file the notice

of appeal is not filed, the appellate court will still imply a motion for extension of time

to file a notice of appeal if the party supplies a reasonable explanation for the late filing

of the notice of appeal. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997).

        In this case, Phillippi filed his notice of appeal ninety-four days after the date the

final judgment was signed. He did not file a motion for extension of time to file the

notice of appeal in the appellate court. Thus, for Phillippi’s notice of appeal to be

timely, he must have (1) timely filed a motion that extended the deadline to file a notice

of appeal to ninety days after the date the judgment was signed; and (2) supplied a

reasonable explanation for the late filing of his notice of appeal such that a motion for

extension of time to file the notice of appeal is implied. See TEX. R. APP. P. 26.1(a);

Verburgt, 959 S.W.2d at 617.



Phillippi v. Citi Residential Lending, Inc.                                             Page 3
        Although entitled “First Amended Motion to Set Aside or Rehearing on Order of

Summary Judgment(s),” we interpret the substance of Phillippi’s post-judgment motion

to be a motion for new trial. See Doctor v. Pardue, 186 S.W.3d 4, 16 (Tex. App.—Houston

[1st Dist.] 2005, pet. denied) (“[W]e look to an instrument’s substance rather than its

form.”). The issue then is whether Phillippi’s post-judgment motion was timely filed.

        A motion for new trial “shall be filed prior to or within thirty days after the

judgment or other order complained of is signed.” TEX. R. CIV. P. 329b(a). The trial

court may not enlarge the period for taking any action under the rules relating to new

trials except as stated in the rules of civil procedure. TEX. R. CIV. P. 5. Similarly, the

appellate court is prohibited from construing Rule of Appellate Procedure 2 to alter the

time for perfecting an appeal in a civil case. TEX. R. APP. P. 2.

        Phillippi’s “First Amended Motion to Set Aside or Rehearing on Order of

Summary Judgment(s)” was filed on June 13, 2012, thirty-three days after the final

judgment was signed on May 11, 2012, and thus was not timely filed. Moreover, in

Phillippi’s response to Citi’s and Deutsche Bank’s motions to dismiss, he does not

identify any other post-judgment motions that had been filed. But before concluding

that Phillippi did not timely file a motion that extended the deadline to file a notice of

appeal to ninety days after the date the judgment was signed, we must also examine

Phillippi’s original “Motion to Set Aside or Rehearing on Order of Summary

Judgment,” filed before the final judgment was signed. We also interpret the substance

of this motion to be a motion for new trial. See Doctor, 186 S.W.3d at 16.




Phillippi v. Citi Residential Lending, Inc.                                         Page 4
        A motion for new trial filed before judgment “shall be deemed to have been filed

on the date of but subsequent to the time of signing of the judgment the motion assails. .

. .” TEX. R. CIV. P. 306c. Further, an appellate court may treat actions taken before an

appealable order is signed as relating to an appeal of that order and give them effect as

if they had been taken after the order was signed.         TEX. R. APP. P. 27.2. Thus, a

premature motion for new trial can extend the appellate timetable. S. Tex. GMAC Real

Estate v. Cohyco, Inc., 124 S.W.3d 321, 325 (Tex. App.—Corpus Christi 2003, no pet.). But

if a trial court modifies a judgment after a motion for new trial has been filed, a second

motion is necessary to extend the deadlines if the first motion does not “assail” the

modified judgment. Id.

          Phillippi’s original “Motion to Set Aside or Rehearing on Order of Summary

Judgment,” filed on May 2, 2012, before the final judgment was signed, challenged only

the summary judgment in favor of Citi. It did not mention Deutsche Bank—neither the

summary judgment in favor of Deutsche Bank on April 26, 2012, nor the final order

dismissing Deutsche Bank’s counterclaims without prejudice on May 11, 2012. Thus,

Phillippi’s original “Motion to Set Aside or Rehearing on Order of Summary Judgment”

did not “assail” the final judgment.          See id.; see also Healthsouth Med. Ctr. v.

PricewaterhouseCoopers L.L.P., No. 05-06-01041-CV, 2007 WL 2460082, at *2 (Tex. App.—

Dallas Aug. 31, 2007, pet. denied) (mem. op.). And it did not extend the deadline to file

a notice of appeal from the May 11, 2012 final order. See S. Tex. GMAC Real Estate, 124

S.W.3d at 325; see also Healthsouth Med. Ctr., 2007 WL 2460082, at *2.



Phillippi v. Citi Residential Lending, Inc.                                         Page 5
        Because Phillippi did not timely file a motion that extended the deadline to file a

notice of appeal to ninety days after the date the judgment was signed, Phillippi’s notice

of appeal was untimely filed. See TEX. R. APP. P. 26.1. We need not address whether

Phillippi supplied a reasonable explanation for the late filing of his notice of appeal

such that a motion for extension of time to file the notice of appeal is implied. See

Verburgt, 959 S.W.2d at 617.

        We grant Citi’s and Deutsche Bank’s motions to dismiss and dismiss this appeal

for want of jurisdiction.




                                                 REX D. DAVIS
                                                 Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Motions granted, appeal dismissed
Opinion delivered and filed December 6, 2012
[CV06]




Phillippi v. Citi Residential Lending, Inc.                                          Page 6
