J.E. Shaunfield Family Limited Partnership v. BMW of Dallas

Opinion

1)ISMISS; Opinion filed October 4, 2012

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In The (utirt nf Apprats 3iftli litrirt uf ixa at lliui No. Os- I 2-00880-CV

•J.E. SHAUNFIELD FAMILY LIMITED PARTNERSHiP, Appellant

V.

BMW OF DALLAS, Appellee

On Appeal from the 95th Judicial District Court Dallas County, Texas Trial Court Cause No. 09-07962

MEMORANDUM OPINION Before Chief Justice Wright and Justices Francis and Lang-Miers Opinion By Chief Justice Wright

By letter dated July 30, 2012, the Court questioned its jurisdiction over this appeal.

Specifically, we questioned the timeliness of appellant’s notice of appeal. We directed appellant to

file ajurisdictional brief explaining how the Court has jurisdiction and gave appellee an opportunity

to file a response. Appellant filed a jurisdictional brief and appellee filed a response.

The trial court signed a final judgment on February 28. 2012. Appellant filed a timely motion

for newtrial on March 29,2012. Accordingly, the notice of appeal was due on May 28. 2012, ninety

days from the date the judgment was signed. See TEx. R. App. P. 26.1(a)(l). Appellant filed its

notice of appeal on June 26, 2012, twenty-nine days past the due date. Without a timely filed notice

of appeal. this Court lacks jurisdiction. See TEx. R. App. P. 25.1(b). We do not have the authority to alter the time for perfecting an appeal in a civil case. See IEX. R. APP. P. 2.

In i lsj urisdictional brie!, appellant explains that it tiled its notice ol appeal within thi rtv days

of the trial court’s order denying its motion br new trial. I lowever. the deadline [‘or tiling a notice

o[appeal runs from the date the trial court signs the judgment, not from the date the trial court rules

on a motion br new trial. See TEx. 1< .APP. P. 26. I . /\ppellant asks that we abide by the supreme

courts policy to apply rules of procedure liberally to reach the merits of an appeal whenever

possible. See I erburg’ v. Dorner, 959 S.W.2d 615. 616-17 (Tex. 1997): lamar v. Patterson, 868

S.W.2d 318. 319 (Tex. 1993) (per curiam): ( ‘rown 1.// Ins. (‘0. v. Estate o/ Gonzales. 820 S.W.2d

121, 121 -22 (Tex. 1991) (per curiam). These cases are not on point. In Verhurgi, the supreme court

held that a motion fhr extension of time is implied where a party. acting in good faith, files a cost

bond within the fifteen day period for which the rule permits a party to file a motion for an extension.

Jamar concerned what constitutes “filing” a motion for new trial lbr purposes of calculating the

appellate timetable. Finally. ( ‘rown Li/i? Insurance concerned a! lowing supplementation of the

appellate record.

In its response. appellee points out that appellant filed its notice of appeal Iburteen days after

the last day to file an extension motion. Neither the appellate rules nor any of the cases cited by

appellant allow this Court to disregard the deadlines fhr filing a notice of appeal. Because the notice

of appeal was untimely tiled, this Court lacks jurisdiction of this appeal. Accordingly. we dismiss

the appeal. See TEx. R. App. P. 42.3(a).

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CAROL YNWRItH f CHIEF JUSiiCE

120880F.P05 niirI uf Apicah FftIi itrirt nf ixa at tlallwa

JUDGMENT J.1. SFli\IJNFILI.J) Fi\NII1.’i’ LIMITED Appeal from the 95th Judicial I)istrict Court P/\RINERSIll P. Appellant of Dallas County. Texas. (Tr.Ct.No. 09- 07962). No. 05-12-00880-CV V. Opinion delivered by Chief Justice Wright, Justices Francis and Lang-Miers, BMW OF DALLAS, Appellee participating.

Based on the Courts opinion of this date, the appeal is DISMISSED.

It is OR1)ERE1) that appellee. BMW of Dallas. recover its costs of the appeal from appellant, J. F. Shaunfield Fami lv Limited Partnership.

Judgment entered October 4. 2012.

CAROLYN WRIGhT (111FF JUS1 ICE /.