Levohn H. Brown v. Shanda Vance

• Court: Court of Appeals of Texas
• Decided: October 26, 2006
• Docket: 07-06-00372-CV
• Status: Published

Opinion

NO. 07-06-0372-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

OCTOBER 26, 2006 ______________________________

IN THE INTEREST OF T.L.B., A CHILD, _________________________________

FROM THE COUNTY COURT AT LAW NO. 2 OF POTTER COUNTY;

NO. 71,632-2; HONORABLE PAMELA SIRMON, JUDGE _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

MEMORANDUM OPINION

Appellant Levohn H. Brown attempts to appeal an order that granted a motion for

nonsuit filed by appellee Shanda Lynn Vance and dismissed the suit she brought seeking

termination of Brown’s parental rights. We dismiss the appeal for want of jurisdiction.

Vance filed her original petition in November 2005, in cause number 71,632-2, in

the County Court at Law No. 2 of Potter County. A letter from Brown indicates the petition

was served on him in Indiana where he is incarcerated. The trial court granted Vance’s

motion for nonsuit and dismissed the case without prejudice in a written order signed and

filed February 22, 2006. The clerk’s record shows the dismissal order disposed of all

parties and issues in the case. No motions extending the deadline for perfection of appeal were filed, making March 24, 2006 the last day on which Brown could perfect an ordinary

appeal from the trial court’s order. See TEX . R. APP. P. 26.1(a) (unless exception applies,

notice of appeal must be filed within thirty days after judgment is signed); In re Bennett,

960 S.W.2d 35, 38 (Tex. 1997) (orig. proceeding) (appellate timetables run from date

dismissal order signed). Brown filed his original notice of appeal on September 20, 2006,

making it untimely.

Because the record indicates Brown did not participate in any hearing in this case

and did not timely file a post-judgment motion or request for findings of fact or conclusions

of law, we must also determine whether his notice was timely to perfect a restricted appeal.

See TEX . R. APP. P. 30. Notice of appeal in a restricted appeal must be filed within six

months of the judgment or order complained of. TEX . R. APP. P. 26.1(c). Brown’s notice

of appeal was filed 210 days, or seven months, after the trial court’s order and was also

untimely to perfect a restricted appeal.

By letter dated October 11, 2006, we notified Brown that his notice of appeal

appeared untimely, and advised that we would consider our jurisdiction over the appeal

on or after October 23, 2006. Brown filed a response to our letter on October 23. Most of

the information contained in Brown’s response pertains to a later termination proceeding

rather than to the nonsuited proceeding that is the subject of this appeal. The response

does not alter our preliminary conclusion that Brown’s notice of appeal was untimely with

respect to this appeal. 1

1 Brown’s notice of appeal also made reference to the later proceeding, cause number 72, 293, also in the County Court at Law No. 2 of Potter County, in which an order

2 Our authority on appeal is dependent on a timely notice of appeal. See Verburgt

v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (applying former rule). No timely notice of

appeal having been filed, we must dismiss the appeal. Accordingly, having given the

required notice, and without expressing any opinion on the merits of Brown’s attempted

appeal from the dismissal of Vance’s suit, we dismiss the appeal for want of jurisdiction.

TEX . R. APP. P. 42.3.

James T. Campbell Justice

terminating his parental rights was entered on August 30, 2006. His appeal of that order is pending in this court as No. 07-06-0371-CV.