Alfred Bernat and John Doe (L.S.) v. Tomas Sotelo and Benancia Sotelo

• Court: Court of Appeals of Texas
• Decided: March 14, 2017
• Docket: 01-16-00234-CV
• Status: Published

Opinion

Opinion issued March 14, 2017

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-16-00234-CV ——————————— ALFRED BERNAT AND JOHN DOE (L.S.), Appellants V. TOMAS SOTELO AND BENANCIA SOTELO, Appellees

On Appeal from the 164th District Court Harris County, Texas Trial Court Case No. 2011-61031

MEMORANDUM OPINION

Appellants, Alfred F. Bernat and John Doe (L.S.), filed a notice of appeal

purporting to appeal “void Judgment cause 2011-61031 signed 22 February 2013. And another Void Judgment 23 August 2013.”1 On September 15, 2016, we issued

an opinion granting appellee’s motion to dismiss this appeal for lack of jurisdiction

on the basis that the notice of appeal was untimely. Appellants have filed a motion

for rehearing appearing to argue, among other things, that the time for filing a notice

of appeal had not started because the orders they sought to appeal were not final.

But, even assuming appellants’ argument, the orders would be unappealable

interlocutory orders and the appeal still must be dismissed for lack of jurisdiction.

See CMH Homes v. Perez, 340 S.W.3d 444, 447 (Tex. 2011) (appellate courts have

jurisdiction over final judgment and interlocutory orders specifically authorized as

appealable by statute). Accordingly, we deny the motion for rehearing but withdraw

our opinion and judgment of September 15, 2016 and issue this opinion in its stead

to acknowledge appellants’ argument.

On March 16, 2016, appellants filed a notice of appeal stating that they sought

to appeal judgments signed on February 22, 2013 and August 23, 2013 in trial court

cause 2011-61031. As a general rule, a notice of appeal is due within thirty days

after the signing of the judgment. See TEX. R. APP. P. 26.1. The deadline is extended

1 Appellants’ notice of appeal also sought to appeal from “the appealable Order cause 2015-55357 dismissed Bill of Review.” The appeal of the bill of review judgment was assigned to, and addressed in, appellate cause number 01-16-00235-CV. Appellants also filed an amended notice of appeal adding an appeal of the judgment in justice court cause EV12C0024097. Because the amended notice of appeal seeks appeal from a judgment in a different trial court cause number, we have forwarded that notice of appeal to the trial court clerk. See TEX. R. APP. P. 25.1(a).

2 to ninety days after the judgment is signed if a party files a timely post-judgment

motion under Rule 329b, or in some cases, a request for findings of fact and

conclusions of law. See id.; TEX. R. CIV. P. 329b(a), (g). The time to file a notice of

appeal may also be extended if, within fifteen days after the date the notice of appeal

is due, the appellant properly files a motion for extension of time to file the notice

of appeal. See TEX. R. APP. P. 10.5(b), 26.3. To the extent that the 2013 judgments

appellants seek to appeal are appealable, we lack jurisdiction because appellants’

March 18, 2016 notice of appeal—filed more than two and a half years after the

judgments were signed—was untimely as to both. See TEX. R. APP. P. 25.1.

Appellants, however, argue that the orders they seek to appeal were not

untimely because they were not final orders. But, to the extent that the orders were

not final, we must dismiss the appeal for lack of jurisdiction because the orders were

non-appealable interlocutory orders. See CMH Homes, 340 S.W.3d at 447.

Accordingly, whether the notice of appeal was untimely (as argued by

appellees) or the orders were interlocutory (as argued by appellants), we lack

jurisdiction in either case and dismiss this appeal.2 TEX. R. APP. P. 42.3(a); 43.2(f).

Any pending motions are dismissed as moot.

PER CURIAM Panel consists of Chief Justice Radack and Justices Higley and Huddle.

2 The appeal in cause number 01-16-00235-CV of the February 9, 2016 order dismissing the bill of review is unaffected by this opinion and judgment. 3