Jerald H. Miller v. Sheree Lucas

• Court: Court of Appeals of Texas
• Decided: December 13, 2018
• Docket: 02-18-00341-CV
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-18-00341-CV ___________________________

JERALD H. MILLER, Appellant

V.

SHEREE LUCAS, Appellee

On Appeal from the 352nd District Court Tarrant County, Texas Trial Court No. 352-291003-17

Before Gabriel, Kerr, and Pittman, JJ. Memorandum Opinion by Justice Gabriel MEMORANDUM OPINION

Appellant Jerald H. Miller attempts to appeal from the trial court’s “Final

Judgment”1 in favor of appellee Sheree Lucas and from “all judgments . . . to the date

of [his] Notice of Appeal.” After timely filing a motion for new trial on July 24,2

which the trial court denied on July 31, Miller filed a notice of appeal on October 22.

On October 24, we notified Miller that his notice of appeal appeared to have been

untimely filed and advised that we would dismiss his appeal for want of jurisdiction

unless he responded no later than November 5 and showed grounds to continue the

appeal. See Tex. R. App. P. 42.3(a), 44.3. Miller did not respond.

Because Miller timely filed a motion for new trial but did not file a motion to

extend the time to file his notice of appeal, the notice was due no later than

September 19. See Tex. R. App. P. 26.1(a)(1). Because Miller filed his notice of appeal

thirty-three days after the appellate deadline expired, we do not have jurisdiction over

his attempted appeal. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997); Florence

v. Miller, No. 02-17-00325-CV, 2017 WL 4683829, at *1 (Tex. App.—Fort Worth

Oct. 19, 2017, no pet.) (mem. op.); Ross v. Guerra, 83 S.W.3d 899, 900 (Tex. App.—

Miller erroneously states in his notice of appeal that the date of the final 1

judgment was July 31, 2018; but the trial court signed the final judgment on June 21, 2018. 2 Although the motion was filed one day after the thirty-day deadline expired, Miller had placed it in the mail on July 21, rendering it timely filed. See Tex. R. Civ. P. 5, 329b(a); see also Tex. R. App. P. 9.2(b)(1).

2 Texarkana 2002, no pet.); see also Tex. R. App. P. 26.3. Accordingly, we dismiss the

appeal for want of jurisdiction. See Tex. R. App. P. 43.2(f).

/s/ Lee Gabriel

Lee Gabriel Justice

Delivered: December 13, 2018