Gavin Saldivar v. D. Evette Saldivar

Opinion

02-10-359-CV

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-10-00359-CV

Gavin Saldivar		APPELLANT
V.
D. Evette Saldivar		APPELLEE

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FROM THE 271st District Court OF Wise COUNTY

MEMORANDUM OPINION[1]

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          Appellant Gavin Saldivar attempts to appeal from the trial court’s judgment granting the divorce of Appellant and Appellee D. Evette Saldivar.  The trial court’s decree was signed July 12, 2010.  The motion for new trial was therefore due August 11, 2010,[2] but it was not filed until August 12, 2010.  The notice of appeal was not filed until October 11, 2010.[3]  On October 15, 2010, because it appeared that the motion for new trial filed one day after its due date was untimely,[4] and that therefore the notice of appeal was untimely,[5] depriving this court of jurisdiction,[6] we notified Appellant in writing of our concern and requested that he advise us within ten days whether he had mailed his motion for new trial on or before its due date.  We stated in the letter that we would dismiss the appeal for want of jurisdiction if we determined that the appeal was not timely perfected.  Appellant did not respond.

          Accordingly, because his motion for new trial was filed one day late, it did not extend Appellant’s deadline for filing his notice of appeal.[7]  His notice of appeal therefore remained due August 11, 2010,[8] but it was not filed until October 11, 2010.  Because the notice of appeal was untimely,[9] we dismiss this appeal for want of jurisdiction.[10]

PER CURIAM

PANEL:  DAUPHINOT, GARDNER, and WALKER, JJ.

DELIVERED:  November 18, 2010

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[1]See Tex. R. App. P. 47.4.

[2]See Tex. R. Civ. P. 329b(a).

[3]See Tex. R. App. P. 26.1(a)(1) (providing that notice of appeal is generally due within thirty days after judgment is signed but that a timely filed motion for new trial extends the filing deadline to within ninety days after the judgment is signed).

[4]See Tex. R. Civ. P. 329b(a).

[5]See Tex. R. App. P. 26.1(a)(1).

[6]See Tex. R. App. P. 25.1, 26.1 (providing together that appellate court has jurisdiction over timely filed notice of appeal).

[7]See Tex. R. App. P. 26.1(a)(1).

[8]See Tex. R. App. P. 26.1.

[9]See id.

[10]See Tex. R. App. P. 42.3(a), 43.2(f).