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Civil Litigation No. 02-02-200-CV, 5/1/2003. Click here for the full text of this decision FACTS: Kelly Renee Dawson appeals a $233,515 default judgment entered against her. She claims that the trial court lacked jurisdiction to enter a postjudgment order granting an amendment to the return of citation and that the evidence offered at the default hearing was legally and factually insufficient to support the damage award. HOLDING: Affirmed in part and reversed and remanded in part. The issue before the court is simply whether the trial court possessed jurisdiction to enter an order granting Carla K. Briggs’ motion to amend the return of citation. Dawson contends that the court review this issue as a question of law under a de novo standard of review, and the court agrees. Rule 118 of the Texas Rules of Civil Procedure provides: At any time in its discretion and upon such notice and on such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued. The default judgment was entered on March 15, 2002. Dawson timely filed a motion for new trial on April 12, 2002. Because the trial court never signed a written order denying Dawson’s motion for new trial, it was overruled by operation of law on May 29, 2002, the 75th day following the March 15, 2002 default judgment. Thus, the trial court possessed plenary power over this case through June 28, 2002, the 105th day following the March 15, 2002, default judgment. The trial court therefore possessed plenary power over the March 15, 2002, default judgment when it signed the June 17, 2002 order granting Briggs’s motion to amend the return of citation. Dawson concedes that the order granting Briggs’ motion for amendment of the return of citation was signed during the trial court’s period of plenary power. Nonetheless, Dawson contends that the trial court lacked jurisdiction to enter its June 17, 2002, order 1. because she filed a notice of appeal on June 7, 2002, vesting exclusive jurisdiction in this court; and 2. because the trial court’s plenary power is limited to the powers listed in rule 329b and those powers do not include the power to amend a return of citation. Briggs responds to Dawson’s position by pointing out that the trial court verbally granted her motion to amend the citation on May 28, 2002, 10 days before Dawson filed her notice of appeal. Briggs argues that the trial court clearly possessed jurisdiction to enter an order during its plenary power formalizing a ruling it made prior to Dawson’s filing of her notice of appeal. Briggs also contends that once the trial court allowed amendment of the citation, the amendment related back to the date the original return was filed with the court so that the verified return is deemed to have been on file for nearly a year before the entry of the default judgment against Dawson. The court first addresses the issue of whether Dawson’s notice of appeal, invoking the jurisdiction of this court, deprived the trial court of jurisdiction to sign its June 17, 2002, order granting Briggs’s motion to amend the return of citation. Dawson cites three cases: Ammex Warehouse Co. v. Archer, 381 S.W.2d 478 (Tex. 1964); Bridas Corp. v. Unocal Corp., 16 S.W.3d 887 (Tex. App. – Houston [14th Dist.] 2000, pet. dism’d w.o.j.); and Atkins v. Snyder, 597 S.W.2d 779 (Tex. Civ. App. – Fort Worth 1980, no writ). These cases are not applicable to the present facts. Each of these cases simply holds that, following the perfection of an appeal, the trial court cannot enter an order that interferes with the appellate court’s jurisdiction. The order here does not interfere with this court’s appellate jurisdiction. The court finds no case law supporting the proposition that the filing of a notice of appeal deprives the trial court of jurisdiction to sign an order during its plenary power on a motion filed, heard, and verbally ruled upon prior to perfection of the appeal. The court holds that the filing of a notice of appeal by Dawson did not deprive the trial court of jurisdiction to sign an order during its plenary power granting Briggs’s motion to amend the citation. OPINION: Walker, J.; Day, Livingston and Walker, JJ.

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