Summary
dismissing appeal for want of jurisdiction where motion for new trial was untimely filed and thus, did not extend appellant's deadline for filing a notice of appeal
Summary of this case from Martinez v. OlmosOpinion
NO. 01-17-00508-CV
04-10-2018
BILL HARTLEY, Appellant v. ESQUIRE DEPOSITION, Appellee
On Appeal from the 61st District Court Harris County, Texas
Trial Court Case No. 2016-73922
MEMORANDUM OPINION
Appellant, Bill Hartley, filed a notice of appeal on July, 7, 2017 attempting to appeal an order signed by the trial court on April 17, 2017 granting a permanent injunction against Hartley. We dismiss the appeal.
Although a notice of appeal generally must be filed within 30 days after the judgment is signed, the time to file a notice of appeal is extended to 90 days after the signing if a party files a timely motion for new trial, motion to modify the judgment, motion to reinstate, or a request for findings of fact and conclusions of law that is either required by the Rules of Civil Procedure or properly considerable by the appellate court. TEX. R. APP. P. 26.1(a)(1-4). Motions for new trial and motions to modify, correct, or reform judgments must be filed within 30 days after the judgment or order is signed. TEX. R. CIV. P. 329b (a), (g).
Hartley's notice of appeal was filed 81 days after the judgment was signed on April 17, 2017. Our court issued an order notifying the parties that Hartley's notice of appeal was filed more than 30 days after the judgment, but could be timely if a record was filed demonstrating that the deadline was extended to 90 days by a timely-filed post-judgment motion. Our order, thus, directed the trial court clerk to file a clerk's record containing any post-judgment motions and orders. The subsequently-filed clerk's record demonstrates that, 35 days after the judgment was signed on April 17, 2017, Hartley filed a motion to reconsider with the trial court on May 22, 2017.
Treating Hartley's motion to reconsider as a motion for new trial, the record demonstrates that it was untimely because it was filed more than 30 days after the judgment. TEX. R. CIV. P. 329b (a), (g). Because the motion was not timely, it did not extend the deadline for filing the notice of appeal; rather, the notice of appeal remained due 30 days after the judgment was signed on April 17, 2017. See, e.g., Stroman v. Martinez, No. 01-14-00991-CV, 2015 WL 1926015, at *1 (Tex. App.—Houston [1st Dist.] Apr. 28, 2015, no pet.) (per curiam) (mem. op.) (granting appellee's motion to dismiss for want of jurisdiction because untimely motion for rehearing and new trial did not extend deadline for filing notice of appeal) (citation omitted); see also Coffee v. Coffee, No. 03-16-00466-CV, 2016 WL 4272122, at *1 & n.1 (Tex. App.—Austin Aug. 11, 2016, no pet.) (per curiam) (mem. op.) (dismissing appeal for want of jurisdiction because district court did not need to consider untimely motion for new trial, making notice of appeal untimely). Accordingly, Hartley's July 7, 2017 notice of appeal, filed 81 days after the judgment, was untimely.
Absent a timely notice of appeal, this court is without jurisdiction to consider this appeal. See Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 564 (Tex. 2005); Garza v. Hibernia Nat'l Bank, 227 S.W.3d 233 (Tex. App.—Houston [1st Dist.] 2007, no pet.). We, therefore, dismiss this appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a).
PER CURIAM Panel consists of Justices Bland, Lloyd, and Caughey