Jessica Kay Ryburn v. Andrew Ryan Walkley

• Court: Court of Appeals of Texas
• Decided: June 18, 2015
• Docket: 03-15-00275-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-15-00275-CV

Jessica Kay Ryburn, Appellant

v.

Andrew Ryan Walkley, Appellee

FROM THE DISTRICT COURT OF LEE COUNTY, 335TH JUDICIAL DISTRICT NO. 14,749, HONORABLE REVA TOWSLEE CORBETT, JUDGE PRESIDING

MEMORANDUM OPINION

On May 7, 2015, appellant Jessica Kay Ryburn filed a notice of appeal and a motion

for extension of time to file the notice of appeal. Appellee Andrew Ryan Walkley filed a response

opposing the motion for extension of time and requesting sanctions under Rule 45 of the Texas Rules

of Appellate Procedure. For the reasons that follow, we dismiss the appeal for want of jurisdiction,

dismiss the motion for extension of time as moot, and deny Walkley’s request for sanctions.

Ryburn appeals from a final judgment signed by the trial court on January 20, 2015.

Ryburn timely filed a motion for new trial on February 19, 2015. See Tex. R. Civ. P. 4, 306a.

Ryburn’s motion for new trial extended her deadline for filing a notice of appeal until 90 days after

the judgment was signed, making the deadline April 20, 2015. See Tex. R. App. P. 26.1(a)(1). That

deadline might have been extended until May 5, 2015, if Ryburn had filed either a notice of appeal

with the trial court or a motion for extension of time with this Court within 15 days after the deadline for filing the notice of appeal. See Tex. R. App. P. 26.3; Verburgt v. Dorner, 959 S.W.2d 615,

617-18 (Tex. 1997) (“[O]nce the period for granting a motion for extension of time under Rule

41(a)(2) [now Rule 26.3] has passed, a party can no longer invoke the appellate court’s

jurisdiction.”). Ryburn’s May 7, 2015 notice of appeal is untimely, and we therefore lack jurisdiction

over this appeal. See Tex. R. App. P. 25.1(b) (providing that filing notice of appeal invokes

appellate court’s jurisdiction), id. R. 2 (establishing that appellate court may not alter time for

perfecting appeal in civil case).

Walkley has asked the Court to award $2,500 in sanctions under Rule 45, asserting

that Ryburn’s appeal is frivolous. See id. R. 45 (“If the court of appeals determines that an appeal

is frivolous, it may—on motion of any party or on its own initiative, after notice and a reasonable

opportunity for response—award each prevailing party just damages.”). Whether to grant sanctions

for a frivolous appeal is a matter of discretion that an appellate court exercises with prudence and

caution and only after careful deliberation in truly egregious circumstances. Goss v. Houston Cmty.

Newspapers, 252 S.W.3d 652, 657 (Tex. App.—Houston [14th Dist.] 2008, no pet.). We deny

Walkley’s request.

Having determined that we lack jurisdiction over the appeal, we dismiss it for want

of jurisdiction and dismiss Ryburn’s motion for extension of time to file the notice of appeal as

moot. See Tex. R. App. P. 42.3(a).

2 __________________________________________

Cindy Olson Bourland, Justice

Before Justices Puryear, Pemberton, and Bourland

Dismissed for Want of Jurisdiction

Filed: June 16, 2015