Nerissa Ona v. Julianito Samson Clemente

• Court: Court of Appeals of Texas
• Decided: February 8, 2017
• Docket: 05-16-01366-CV
• Status: Published

Opinion

DISMISS and Opinion Filed February 8, 2017

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-16-01366-CV

NERISSA ONA, Appellant V. JULIANITO SAMSON CLEMENTE, Appellee

On Appeal from the 417th Judicial District Court Collin County, Texas Trial Court Cause No. 417-02904-2015

MEMORANDUM OPINION Before Chief Justice Wright, Justice Lang-Miers, and Justice Stoddart Opinion by Chief Justice Wright By letter dated January 6, 2017, the Court questioned its jurisdiction over this appeal

because the notice was untimely. The notice of appeal was, however, filed within fifteen days of

the deadline. For this reason, we informed appellant that she could remedy the timeliness

problem by filing, by January 17, 2017, a motion for extension of time to file the notice of

appeal. See TEX. R. APP. P. 26.3. We cautioned appellant that failure to file an extension motion

by the specified date may result in dismissal of the appeal for want of jurisdiction without further

notice. As of today’s date, appellant has not filed an extension motion.

Absent a timely post-judgment motion extending the appellate timetable, a notice of

appeal is due thirty days after the date the judgment is signed or, with an extension motion, forty- five days after the date the judgment is signed. See TEX. R. APP. P. 26.1, 26.3. Without a timely

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

The trial court signed the judgment on October 13, 2016. Appellant did not file a timely

post-judgment motion extending the appellate timetable. Accordingly, the notice of appeal was

due on Monday, November 14, 2016. See TEX. R. APP. P. 4.1(a), 26.1. Appellant filed a notice

of appeal on November 17, 2016, three days past the deadline.

Counsel for appellee filed a letter stating that he believes Defendant’s Motion to Correct

Clerical Errors in Final Summary Judgment filed on October 18, 2016 served to extend the

appellate deadlines. See TEX. R. CIV. P. 316. We disagree. A rule 316 motion to correct clerical

errors does not extend the time for perfecting an appeal. See TEX. R. CIV. P. 329b(g).

Appellant failed to file a timely notice of appeal or seek an extension of time.

Accordingly, we dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a).

/Carolyn Wright/ CAROLYN WRIGHT CHIEF JUSTICE

161366F.P05

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

NERISSA ONA, Appellant On Appeal from the 417th Judicial District Court, Collin County, Texas No. 05-16-01366-CV V. Trial Court Cause No. 417-02904-2015. Opinion delivered by Chief Justice Wright. JULIANITO SAMSON CLEMENTE, Justices Lang-Miers and Stoddart Appellee participating.

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

It is ORDERED that appellee JULIANITO SAMSON CLEMENTE recover his costs of this appeal from appellant NERISSA ONA.

Judgment entered February 8, 2017.

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