Lakeith Amir-Sharif v. Eileen Kennedy

• Court: Court of Appeals of Texas
• Decided: July 5, 2012
• Docket: 08-12-00172-CV
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

§ LAKEITH AMIR-SHARIF, No. 08-12-00172-CV § Appellant, Appeal from the § v. 83rd District Court § of Pecos County, Texas EILEEN KENNEDY, ET AL., § (TC# P-7002-83-CV) Appellees. §

MEMORANDUM OPINION

Lakeith Amir-Sharif (“Amir-Sharif”) is attempting to appeal the trial court’s order

dismissing his causes of action against prison officials for allegedly destroying certain legal

documents and “law publications.” Because Amir-Sharif failed to file a timely notice of appeal,

we dismiss the appeal.

FACTUAL AND PROCEDURAL BACKGROUND

On May 14, 2012, Amir-Sharif filed his “Notice of Belated Appeal” from the trial court’s

dismissal order signed October 6, 2011. By letter dated the same day, the Clerk of this Court

advised Amir-Sharif that she had filed the notice of appeal, but that the Court intended to dismiss

the appeal for want of jurisdiction because the notice of appeal did not appear to be timely. The

Clerk further informed Amir-Sharif that the appeal could be dismissed without further notice

unless he responded by May 26, 2012 showing grounds for continuing the appeal. In his response

to the Clerk’s letter, Amir-Sharif states that he never received notice of the trial court’s dismissal

order and that he only learned the trial court had signed the order because of this Court’s April 27, 2012 opinion denying his petition for a writ of mandamus in a companion case – Cause No.

08-12-00080-CV.

DISCUSSION

A timely filed notice of appeal is necessary to invoke this Court’s jurisdiction.

TEX.R.APP.P. 25.1(b); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). When an

appellant has not filed a timely motion for new trial, motion to modify the judgment, motion to

reinstate, or request for findings of fact and conclusions of law, the notice of appeal must be filed

within 30 days after a final judgment or appealable order is signed. TEX.R.APP.P. 26.1. A

motion for extension of time is necessarily implied when an appellant, acting in good faith, files a

notice of appeal beyond the time allowed by Rules of Appellate Procedure 26.1, but within the

15-day grace period provided by Rules of Appellate Procedure 26.3. See TEX.R.APP.P. 26.3;

Verbugt v. Dorner, 959 S.W.2d 615, 617-18 (Tex. 1997)(construing predecessor to Rule 26.1).

When a party adversely affected by a final judgment or appealable order does not receive

notice within 20 days of the judgment, the period for filing the appeal begins to run from the date

the party received notice, provided no more than 90 days have elapsed since the signing of the

judgment or order. See TEX.R.CIV.P. 306a.4; TEX.R.APP.P. 4.2(a)(1). However, Rule of

Appellate Procedure 4.2(a)(1) expressly provides that “in no event may the periods [for perfecting

an appeal] begin more than 90 days after the judgment or order was signed.” TEX.R.APP.P.

4.2(a)(1). To invoke the provisions of Rule of Appellate Procedure 4.2(a)(1) enlarging the time to

file an appeal, an appellant must comply with Rule of Civil Procedure 306a.5. TEX.R.APP.P.

4.2(b). Rule 306a.5 requires an appellant to prove in the trial court, by sworn motion and notice,

the date the appellant received notice of the judgment or order or acquired actual knowledge the

2 judgment or order had been signed. TEX.R.CIV.P. 306a.5.

Here, the trial court signed the dismissal order on October 6, 2011. Because Amir-Sharif

failed to file a timely motion for new trial, motion to modify the judgment, motion to reinstate, or

request for findings of fact and conclusions of law, the notice of appeal was due by November 5,

2011. Amir-Sharif did not file the notice of appeal until May 14, 2012. He contends, as noted

above, that he never received notice of the trial court’s dismissal order and did not acquire actual

knowledge that the trial court had signed the order until this Court issued its April 27, 2012 opinion

denying his petition for a writ of mandamus in Cause No. 08-12-00080-CV. Since more than six

months have elapsed from the date the trial court signed the dismissal order to the date Amir-Sharif

first learned that the trial court had signed the order, Rule of Civil Procedure 306a.4 is

inapplicable. Moreover, even if this rule were applicable, Amir-Sharif did not follow the

procedures required by Rule of Appellate Procedure 4.2(b) and Rule of Civil Procedure 306a.5 to

invoke its application. See Memorial Hosp. of Galveston County v. Gillis, 741 S.W.2d 364, 365

(Tex. 1987)(per curiam)(holding that compliance with the provisions of Rule of Civil Procedure

306a is a jurisdictional prerequisite). Accordingly, the notice of appeal was not timely filed.

Referring to Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965),

Amir-Sharif argues that the trial court’s and district clerk’s failure to provide him with notice of

the dismissal order denied him fundamental due process by depriving him of the right to appeal

and file post-judgment motions. Manzo stands for the general proposition that the failure to

provide notice of a hearing in a contested case constitutes lack of due process. 380 U.S. at 550, 85

S.Ct. at 1190. However, in this case, there is no evidence that the clerk of the trial court failed to

comply with its duty pursuant to Rule of Civil Procedure 306a.3 to provide Amir-Sharif with

3 notice of the trial court’s dismissal order. See TEX.R.CIV.P. 306a.3. As the party adversely

affected by the dismissal order, Amir-Sharif bore the burden to prove that he did not receive notice

as he alleges in order to invoke the provisions of the Rules of Appellate Procedure and Rules of

Civil Procedure allowing him additional time to file an appeal. See TEX.R.CIV.P. 306a.4,

306a.5; TEX.R.APP.P. 4.2(a)(1). To have invoked these, Amir-Shariff was required to have

complied with Rule of Civil Procedure 306a.5. See TEX.R.CIV.P. 306a.5. He did not, and, in

his jurisdictional response, he does not challenge the constitutionality of this procedural

requirement. Accordingly, Amir-Sharif has failed to show grounds for continuing the appeal.

Because Amir-Sharif’s notice of appeal was not timely, we dismiss the appeal for want of

jurisdiction. See TEX.R.APP.P. 42.3(a)(permitting appeals court, on its own initiative, to dismiss

appeal for want of jurisdiction).

July 5, 2012 CHRISTOPHER ANTCLIFF, Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.