Antonio Salton v. GMAC Mortgage LLC as Servicing for the Bank of New York Trust Company NA

• Court: Court of Appeals of Texas
• Decided: March 24, 2010
• Docket: 04-10-00108-CV
• Status: Published

Opinion

i i i i i i

MEMORANDUM OPINION

No. 04-10-00108-CV

Antonio SALTON, Appellant

v.

GMAC MORTGAGE LLC as Servicing Agent for the Bank of New York Trust Company, NA, Appellee

From the 166th Judicial District Court, Bexar County, Texas Trial Court No. 2009-CI-17819 Honorable David A. Berchelmann, Jr., Judge Presiding

PER CURIAM

Sitting: Catherine Stone, Chief Justice Karen Angelini, Justice Sandee Bryan Marion, Justice

Delivered and Filed: March 24, 2010

DISMISSED FOR LACK OF JURISDICTION

Appellant filed a notice of appeal seeking to appeal an order dissolving a temporary

restraining order that was signed by the trial court on November 3, 2009. Orders relating to

temporary restraining orders are not generally appealable; however, such orders can be construed to

be orders relating to temporary injunctions in certain circumstances. In re Tex. Nat. Res. Conserv.

Comm’n, 85 S.W.3d 201, 205 (Tex. 2002). In such circumstances, however, the appeal of the order

would be accelerated, and the notice of appeal would be required to be filed within twenty days from 04-10-00108-CV

the date the trial court signed the order. TEX . CIV . PRAC. & REM . CODE § 51.014(a)(4); TEX . R. APP .

P. 26.1(b). Even assuming the order in the instant case could be construed as relating to a temporary

injunction, the order was signed on November 3, 2009; therefore, the notice of appeal was required

to have been filed no later than November 23, 2009. Appellant did not file his notice of appeal until

February 2, 2010.

This court ordered appellant to show cause in writing no later than March 4, 2010, why this

appeal should not be dismissed for lack of jurisdiction. Appellant responded, agreeing that the

appeal was untimely filed and stating his intention to file a petition for writ of mandamus. Because

the notice of appeal was untimely filed, this appeal is dismissed for lack of jurisdiction. Costs of the

appeal are taxed against appellant.

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