Delfred Harper v. Rusty Gibson

• Court: Court of Appeals of Texas
• Decided: April 23, 2021
• Docket: 05-20-00957-CV
• Status: Published

Opinion

Dismiss and Opinion Filed April 23, 2021

In the Court of Appeals Fifth District of Texas at Dallas No. 05-20-00957-CV

DELFRED HARPER, Appellant V. RUSTY GIBSON, Appellee

On Appeal from the 160th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-19-03812

MEMORANDUM OPINION Before Justices Schenck, Reichek, and Carlyle Opinion by Justice Carlyle Delfred Harper appeals from the trial court’s June 17, 2020 order of dismissal

for want of prosecution. We questioned our jurisdiction over this appeal because

appellant’s October 30, 2020 notice of appeal did not appear to be timely. See

Brashear v. Victoria Gardens of McKinney, L.L.C., 302 S.W.3d 542, 545–46 (Tex.

App.—Dallas 2009, no pet.) (timely filing of notice of appeal is jurisdictional).

“Simplicity and certainty in appellate procedure are nowhere more important

than in determining the time for perfecting appeal.” Lehmann v. Har-Con Corp., 39

S.W.3d 191, 205 (Tex. 2001). To that end, the Texas Rules of Appellate Procedure provide rules for calculating the deadline for filing a notice of appeal from the date

the final judgment is signed. See id.; TEX. R. APP. P. 26.1. When a post-judgment

motion such as a motion to reinstate or motion for new trial is filed, the deadline is

ninety days, or with an extension motion 105 days, from the date the judgment is

signed. See TEX. R. APP. P. 26.1(a), 26.3. An order denying a post-judgment motion

such as a motion to reinstate or motion for new trial is not separately appealable from

the final judgment and does not start the appellate timetable. See Jarrell v. Bergdorf,

580 S.W.3d 463, 465 (Tex. App.—Houston [14th Dist.] 2019, no pet.).

Here, appellant filed the notice of appeal within thirty days of the order

denying the motion to reinstate but 135 days after the order of dismissal. Because

appellant’s notice appeal was not filed within 105 days of the order of dismissal, it

was not timely, we lack jurisdiction over this appeal, and we dismiss this appeal for

want of jurisdiction. See TEX. R. APP. P. 42.3(a).

/Cory L. Carlyle/ CORY L. CARLYLE JUSTICE

200957F.P05

2 Court of Appeals Fifth District of Texas at Dallas JUDGMENT

DELFRED HARPER, Appellant On Appeal from the 160th Judicial District Court, Dallas County, Texas No. 05-20-00957-CV V. Trial Court Cause No. DC-19-03812. Opinion delivered by Justice Carlyle. RUSTY GIBSON, Appellee Justices Schenck and Reichek participating.

In accordance with this Court’s opinion of this date, this appeal is DISMISSED.

It is ORDERED that appellee RUSTY GIBSON recover his costs of this appeal from appellant DELFRED HARPER.

Judgment entered this 23rd day of April, 2021.