Jerry Wanzer v. James R. Tanner

• Court: Court of Appeals of Texas
• Decided: September 22, 2010
• Docket: 04-09-00443-CV
• Status: Published

Opinion

MEMORANDUM OPINION No. 04-09-00443-CV

Jerry WANZER, Appellant

v.

James R. TANNER, Jeffrey T. Newton, and Marcos A. Cuellar, Appellees

From the 81st Judicial District Court, Karnes County, Texas Trial Court No. 07-12-00177-CVK Honorable Ron Carr, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Catherine Stone, Chief Justice Sandee Bryan Marion, Justice Steven C. Hilbig, Justice

Delivered and Filed: September 22, 2010

DISMISSED FOR LACK OF JURISDICTION

Following the trial court’s determination that appellant was a vexatious litigant and

appellant’s failure to furnish costs, the trial court signed an order dismissing appellant’s claims

against appellees on May 8, 2009. Appellant’s notice of appeal was due to be filed on June 8,

2009 and any motion for an extension of time in which to file the notice of appeal was due on

June 23, 2009. Appellant filed a notice of appeal on July 6, 2009 in which he alleges he did not

become aware of the dismissal order until June 5, 2009. 04-09-00443-CV

The Texas Rules of Civil Procedure allow a party to extend the time period in which a

notice of appeal may be filed “[i]f within twenty days after the . . . order is signed, [the] party. . .

has neither received notice . . . nor acquired actual knowledge of the order . . . .” TEX. R. CIV. P.

306a(4). However, “[i]n order to establish[] the application of paragraph (4) of this rule, the

party adversely affected is required to prove in the trial court, on sworn motion and notice, the

date on which the party . . . first either received a notice of the judgment or acquired actual

knowledge of the signing and that this date was more than twenty days after the judgment was

signed.” TEX. R. CIV. P. 306a(5). Here, appellant did not establish in the trial court the date he

alleges he first acquired actual notice of the May 8, 2009 dismissal order. Appellant’s reply to

appellees’ response on appeal does not explain his failure to request a Rule 306a(4) ruling from

the trial court. Instead, he contends the trial court is “playing games . . . by making it difficult to

prosecute [his] claims.”

We conclude appellant’s July 6, 2009 notice of appeal was not timely; therefore, we must

dismiss this appeal for lack of jurisdiction.

Sandee Bryan Marion, Justice

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