Guardianship of Rosemary Ell and for an Alleged Incapacitated Person

• Court: Court of Appeals of Texas
• Decided: May 2, 2017
• Docket: 05-17-00156-CV
• Status: Published

Opinion

DISMISS and Opinion Filed May 2, 2017

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-17-00156-CV

GUARDIANSHIP OF ROSEMARY ELL, AN ALLEGED INCAPACITATED PERSON

On Appeal from the Probate Court No. 3 Dallas County, Texas Trial Court Cause No. PR-14-02036-3

MEMORANDUM OPINION Before Justices Bridges, Myers, and Brown Opinion by Justice Bridges Appellants appeal from the trial court’s order dismissing the guardianship proceeding.

By letter dated March 14, 2017, the Court questioned its jurisdiction over this appeal as it

appeared the notice of appeal was untimely. We instructed appellants to file a letter brief with an

opportunity for appellee to file a response. The parties complied.

When a timely post-judgment motion extending the appellate timetable is filed, a notice

of appeal is due ninety days after the date the judgment is signed. See TEX. R. APP. P. 26.1(a).

Without a timely filed notice of appeal, this Court lacks jurisdiction. See TEX. R. APP. P. 25.1(b).

The trial court signed the dismissal order on October 19, 2016. Appellants filed a timely

motion for new trial on November 18, 2016. See TEX. R. CIV. P. 329b(a). Accordingly, the

notice of appeal was due on January 17, 2017, ninety days after the date the dismissal order was

signed. See TEX. R. APP. P. 26.1(a). Appellants filed a notice of appeal on February 14, 2017,

twenty-eight days past the deadline. In their jurisdictional brief, appellants explain that, although the trial court signed an

order denying their motion for new trial on December 30, 2016, they did not receive notice of the

order until January 26, 2017. Thus, they argue, their notice of appeal filed on February 14, 2017

was timely as it was filed within thirty days of January 26, 2017. We disagree. It is the date the

judgment is signed, not the date an order denying a motion for new trial is signed, that triggers

the deadline for filing a notice of appeal. See TEX. R. APP. P. 26.1(a); Weik v. Second Baptist

Church of Houston, 988 S.W.2d 437, 438 (Tex. App.—Houston [1st Dist.] 1999, pet. denied).

Because appellants failed to file a timely notice of appeal, the Court lacks jurisdiction

over the appeal. We dismiss the appeal. TEX. R. APP. P. 42.3(a).

/David L. Bridges/ DAVID L. BRIDGES JUSTICE

170156F.P05

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

GUARDIANSHIP OF ROSEMARY ELL, On Appeal from the Probate Court No. 3, AN ALLEGED INCAPACITATED Dallas County, Texas PERSON Trial Court Cause No. PR-14-02036-3. Opinion delivered by Justice Bridges. No. 05-17-00156-CV Justices Myers and Brown participating.

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

It is ORDERED that appellee Mitchell Roll recover his costs of this appeal from appellants Kathy Marthe and Wilmer Roll.

Judgment entered May 2, 2017.

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