Lee Weir, Mike Weir, and Al Weir v. Sterling State Bank

Opinion

DISMISS and Opinion Filed July 6, 2016.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-16-00500-CV

LEE WEIR, MIKE WEIR, AND AL WEIR, Appellants V. STERLING STATE BANK, Appellee

On Appeal from the 191st Judicial District Court Dallas County, Texas Trial Court Cause No. DC-14-07718

MEMORANDUM OPINION Before Justices Lang-Miers, Evans, and Brown Opinion by Justice Evans In a letter dated May 23, 2016, the Court questioned its jurisdiction over this appeal

because it appears the notice of appeal is untimely. We instructed appellants to file, within ten

days, a letter brief addressing our concern and cautioned them that failure to do so may result in

dismissal of the appeal without further notice. As of today’s date, appellants have not filed the

requested letter brief.

Where no post-judgment motion extending the appellate timetable is filed, a notice of

appeal is due thirty days after the date the judgment is signed. See TEX. R. APP. P. 26.1. Without

a timely filed notice of appeal, this Court lacks jurisdiction. See TEX. R. APP. P. 25.1(b).

Appellants appeal from the trial court’s post-judgment turnover order and order

appointing a receiver signed on February 2, 2016. They filed their notice of appeal on April 22, 2016. Citing to rules 4.2(a)(1) and 26.1 of the rules of appellate procedure, appellants state in

their notice of appeal that it is being filed “within thirty (30) days after Defendants acquired

actual notice of the signing of the Order.” See TEX. R. APP. P. 4.2(a)(1), 26.1. The procedure to

gain additional time where a party does not receive notice of a judgment is governed by rule

306a(5) of the rules of civil procedure. See TEX. R. APP. P. 4.2(b); TEX. R. CIV. P. 306a(5). To

show the applicability of rule 306a(4), appellants were required to prove on sworn motion in the

trial court the date on which either they or their attorney acquired knowledge of the turnover

order. See TEX. R. CIV. P. 306a(4), (5). After hearing a rule 306a motion, the trial court must

sign a written order that finds the date when the party or his attorney first either received notice

or actual knowledge that the judgment or order was signed. See TEX. R. APP. P. 4.2(c). The

record before this Court does not contain the required motion or order.

Without a written order showing the date that the trial court found the appellants or their

attorney first either received notice of or actual knowledge of the order, the notice of appeal was

due on March 3, 2016. See TEX. R. APP. P. 26.1. Appellants filed their notice of appeal on April

2, 2016, fifty days past the deadline. Because of the untimely notice of appeal, we dismiss the

appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a).

/David Evans/ 160500F.P05 DAVID EVANS JUSTICE

–2– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

LEE WEIR, MIKE WEIR, AND AL WEIR, On Appeal from the 191st Judicial District Appellants Court, Dallas County, Texas Trial Court Cause No. DC-14-07718. No. 05-16-00500-CV V. Opinion delivered by Justice Evans. Justices Lang-Miers and Brown STERLING STATE BANK, Appellee participating.

In accordance with this Court’s opinion of this date, the appeal is DISMISSED.

It is ORDERED that appellee STERLING STATE BANK recover its costs of this appeal from appellants LEE WEIR, MIKE WEIR, AND AL WEIR.

Judgment entered this 6th day of July, 2016.

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