Raylee Gilstrap v. Jason Calley

• Court: Court of Appeals of Texas
• Decided: December 9, 2004
• Docket: 14-04-01064-CV
• Status: Published

Opinion

Dismissed and Memorandum Opinion filed December 9, 2004

Dismissed and Memorandum Opinion filed December 9, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-04-01064-CV

RAYLEE GILSTRAP, Appellant

V.

JASON CALLEY, Appellee

On Appeal from the 405th District Court

Galveston County, Texas

Trial Court Cause No. 01CV1010

M E M O R A N D U M   O P I N I O N

This is an attempted appeal from a judgment, signed June 11, 2003.  No motion for new trial was filed.  Appellant=s notice of appeal was filed on October 4, 2004.

The notice of appeal must be filed within thirty days after the judgment is signed when 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 conclusion of law.  See Tex. R. App. P. 26.1

Appellant=s notice of appeal was not filed timely. 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 rule 26.1, but within the fifteen-day grace period provided by Rule 26.3 for filing a motion for extension of time.  See Verburgt v. Dorner, 959 S.W.2d 615, 617-18 9 (1997) (construing the predecessor to Rule 26).  However, the appellant must offer a reasonable explanation for failing to file the notice of appeal in a timely manner.  See Tex. R. App. P. 26.3, 10.5(b)(1)(C); Verburgt, 959 S.W.2d at 617-18.  Appellant=s notice of appeal was not filed within the fifteen-day period provided by Rule 26.3

On November 4, 2004, notification was transmitted to all parties of the Court=s intent to dismiss the appeal for want of jurisdiction.  See Tex. R. App. P. 42.3(a).  Appellant filed a response, claiming that he was never apprised of entry of final judgment.  Because appellant filed a notice of appeal, he did, at some point, become aware of entry of final judgment.  If appellant did not receive timely notice of the trial court judgment, he could have extended the deadlines for appeal by following the procedures set out in Tex. R. Civ. P. 306a(4)-(5).  Pro se litigants are held to the same standards as licensed attorneys, and therefore they must comply with all applicable Rules of procedure.  Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184‑85 (Tex. 1978) (holding that litigants who represent themselves must comply with procedures established by Rules notwithstanding fact that they are not licensed attorneys).  Because appellant failed to follow the procedures for establishing late notice of the judgment, the deadline for perfecting the appeal was not extended.   We find that appellant=s response to our notice regarding the untimely notice of appeal fails to demonstrate that this Court has jurisdiction to entertain the appeal.

Accordingly, the appeal is ordered dismissed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed December 9, 2004.

Panel consists of Justices Anderson, Hudson, and Frost.