Alejandro Tunchez v. Elizabeth Vargas Tunchez

• Court: Court of Appeals of Texas
• Decided: April 19, 2018
• Docket: 05-18-00347-CV
• Status: Published

Opinion

Dismissed and Opinion Filed April 19, 2018.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-00347-CV

ALEJANDRO TUNCHEZ, Appellant V. ELIZABETH VARGAS TUNCHEZ, Appellee

On Appeal from the 229th Judicial District Court Duval County, Texas Trial Court Cause No. DC-15-367

MEMORANDUM OPINION Before Justices Bridges, Evans, and Whitehill Opinion by Justice Evans

Before the Court is appellant’s March 9, 2018 notice of appeal or alternative motion for

extension of time to file notice of appeal (“extension motion”).1 Because the notice of appeal was

neither timely filed nor filed within the extension period allowed by the rules of appellate

procedure, we deny the motion and dismiss the appeal for want of jurisdiction. See TEX. R. APP.

P. 42.3(a); Brashear v. Victoria Gardens of McKinney, L.L.C., 302 S.W.3d 542, 545 (Tex. App.—

Dallas 2009, no pet.) (op. on reh’g) (timely notice of appeal is jurisdictional).

The extension motion recites the appeal is from the trial court’s denial of appellant’s

motion for new trial and is based on the date the motion for new trial was denied, or alternatively,

1 This appeal was transferred from the Fourth Court of Appeals to this Court by the Texas Supreme Court pursuant to its docket equalization order. TEX. GOV’T CODE ANN. § 73.001 (West 2013). the date the motion for new trial was filed.2 The operative date for determining the timeliness of

an appeal, however, is the date of judgment, not the date the motion for new trial was filed or

denied. See TEX. R. APP. P. 26.1; State Office of Risk Mgmt. v. Bearden, 335 S.W.3d 421, 428

(Tex. App.—Corpus Christi 2011, pet. denied).

Under rule of appellate procedure 26.1, a notice of appeal must be filed within thirty days

of the date of judgment. TEX. R. APP. P. 26.1. When a motion for new trial is timely filed, that is,

when it is filed within thirty days of the date of judgment, the notice of appeal must be filed within

ninety days of the judgment. Id. 26.1(a); TEX. R. CIV. P. 329b(a). The deadlines for filing the

notice of appeal can be extended if the notice of appeal is filed within fifteen days of the applicable

deadline and an extension motion reasonably explaining the need for the extension is also filed.

See TEX. R. APP. P. 10.5(b), 26.3; Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997).

The record here reflects the judgment was signed June 23, 2017 and the motion for new

trial was filed October 25, 2017. Because appellant did not file his motion for new trial within

thirty days of the judgment, the deadline for filing the notice of appeal was July 24, 2017, or with

an extension motion, August 8, 2017. See TEX. R. APP. P. 4.1, 26.1(a), 26.3. Having been filed

March 9, 2018, the notice of appeal is untimely. Accordingly, we deny the extension motion and

dismiss the appeal. See id. 42.3(a).

180347F.P05 /David Evans/ DAVID EVANS JUSTICE

2 The motion for new trial was heard November 29, 2017. Appellant asserts in the extension motion that the motion for new trial was overruled by operation of law seventy-five days after it was heard. However, the clerk’s record reflects the trial court signed a written order denying the motion for new trial November 30, 2017.

–2– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

ALEJANDRO TUNCHEZ, Appellant On Appeal from the 229th Judicial District Court, Duval County, Texas No. 05-18-00347-CV V. Trial Court Cause No. DC-15-367. Opinion delivered by Justice Evans, ELIZABETH VARGAS TUNCHEZ, Justices Bridges and Whitehill Appellee participating.

In accordance with this Court’s opinion of this date, we DISMISS the appeal.

We ORDER appellee Elizabeth Vargas Tunchez recover her costs, if any, of this appeal from appellant Alejandro Tunchez.

Judgment entered this 19th day of April, 2018.

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