K & S Mart, Inc. v. Proton Prc, Ltd.

Court of Appeals of Texas

K & S Mart, Inc. v. Proton Prc, Ltd.

328 S.W.3d 659, 2010 Tex. App. LEXIS 9076, 2010 WL 4614243

CourtCourt of Appeals of Texas

DecidedNovember 16, 2010

Docket05-10-01065-CV

StatusPublished

This text of 328 S.W.3d 659 (K & S Mart, Inc. v. Proton Prc, Ltd.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

K & S Mart, Inc. v. Proton Prc, Ltd., 328 S.W.3d 659, 2010 Tex. App. LEXIS 9076, 2010 WL 4614243 (Tex. Ct. App. 2010).

Pincite

Opinion

OPINION

Opinion by

Chief Justice WRIGHT.

Before the Court is appellee’s motion to dismiss for want of jurisdiction. The trial court conducted a bench trial in this case on June 25, 2009. Appellants appeared in person and through their counsel and fully participated in the trial. At the conclusion of the trial, the trial court took the case under advisement. The trial judge signed the judgment on March 23, 2010. Counsel for appellee received a copy of the judgment in the mail. Counsel for appellants contends that he did not receive a copy of the judgment in the mail. On August 23, 2010, five months after the judgment was signed, appellants filed their notice of restricted appeal.

Appellee contends this appeal should be dismissed because appellants do not meet the requirements for a restricted appeal and them notice of appeal was otherwise untimely. In their response to the motion to dismiss, appellants admit that they participated in the trial. They contend, however, that they will be denied due process if they are not allowed to appeal.

The right to a restricted appeal is limited to parties who did not participate— either in person or through counsel — in the hearing that resulted in the judgment complained of and who did not timely file a post-judgment motion or notice of appeal. Tex.R.App. P. 30. The legislature has the power to limit the right of appeal. Sultan v. Mathew, 178 S.W.3d 747, 752 (Tex.2005) (citing Seale v. McCollum, 116 Tex. 662, 287 S.W. 45, 47 (1926)).

Appellants do not meet the requirements for a restricted appeal because they participated in the trial. Appellants did not file any post-judgment motions. See generally Tex.R. Civ. P. 306a & 329b. Therefore, their notice of appeal was due April 22, 2010. See Tex.R.App. P. 26.1. Appellants notice of appeal filed on August 23, 2010 was untimely. Without a timely filed notice of appeal, this Court lacks jurisdiction. See Tex.R.App. P. 25.1(b).

Accordingly, we grant appellee’s motion to dismiss for want of jurisdiction and dismiss this appeal. See Tex.R.App. P. 42.3(a).

Free access — add to your briefcase to read the full text and ask questions with AI

OPINION

Opinion by

Chief Justice WRIGHT.

Before the Court is appellee’s motion to dismiss for want of jurisdiction. The trial court conducted a bench trial in this case on June 25, 2009. Appellants appeared in person and through their counsel and fully participated in the trial. At the conclusion of the trial, the trial court took the case under advisement. The trial judge signed the judgment on March 23, 2010. Counsel for appellee received a copy of the judgment in the mail. Counsel for appellants contends that he did not receive a copy of the judgment in the mail. On August 23, 2010, five months after the judgment was signed, appellants filed their notice of restricted appeal.

Appellee contends this appeal should be dismissed because appellants do not meet the requirements for a restricted appeal and them notice of appeal was otherwise untimely. In their response to the motion to dismiss, appellants admit that they participated in the trial. They contend, however, that they will be denied due process if they are not allowed to appeal.

The right to a restricted appeal is limited to parties who did not participate— either in person or through counsel — in the hearing that resulted in the judgment complained of and who did not timely file a post-judgment motion or notice of appeal. Tex.R.App. P. 30. The legislature has the power to limit the right of appeal. Sultan v. Mathew, 178 S.W.3d 747, 752 (Tex.2005) (citing Seale v. McCollum, 116 Tex. 662, 287 S.W. 45, 47 (1926)).

Appellants do not meet the requirements for a restricted appeal because they participated in the trial. Appellants did not file any post-judgment motions. See generally Tex.R. Civ. P. 306a & 329b. Therefore, their notice of appeal was due April 22, 2010. See Tex.R.App. P. 26.1. Appellants notice of appeal filed on August 23, 2010 was untimely. Without a timely filed notice of appeal, this Court lacks jurisdiction. See Tex.R.App. P. 25.1(b).

Accordingly, we grant appellee’s motion to dismiss for want of jurisdiction and dismiss this appeal. See Tex.R.App. P. 42.3(a).

Cite This Page — Counsel Stack

Bluebook (online)

328 S.W.3d 659, 2010 Tex. App. LEXIS 9076, 2010 WL 4614243, Counsel Stack Legal Research, https://law.counselstack.com/opinion/k-s-mart-inc-v-proton-prc-ltd-texapp-2010.

Opinion

Related

Cite This Page — Counsel Stack