Richard Payne v. Paul Morales, Thomas S. Hinkle, and Joe A. Shaver

• Court: Court of Appeals of Texas
• Decided: August 18, 2010
• Docket: 04-10-00528-CV
• Status: Published

Opinion

i i i i i i

MEMORANDUM OPINION

No. 04-10-00528-CV

Richard PAYNE, Appellant

v.

Paul MORALES, Thomas S. Hinkle, and Joe A. Shaver, Appellees

From the 218th Judicial District Court, Karnes County, Texas Trial Court No. 07-12-00176-CVK Honorable Ron Carr, Judge Presiding

PER CURIAM

Sitting: Catherine Stone, Chief Justice Steven C. Hilbig, Justice Marialyn Barnard, Justice

Delivered and Filed: August 18, 2010

DISMISSED FOR LACK OF JURISDICTION

Richard Payne appeals the trial court’s January 27, 2010, judgment dismissing his suit against

Warden Paul Morales, Captain Thomas S. Hinkle, and Sergeant Joe A. Shaver. Within thirty days

of the judgment, Payne filed a “Motion for Leave to File an Amended Complaint to Include More

and Different Facts and For Reconsideration.” The motion sought to modify, correct, or reform the

judgment and therefore extended the time for perfecting an appeal. See TEX . R. CIV . P. 329b(g). 04-10-00528-CV

Payne’s notice of appeal was therefore due April 27, 2010 (ninety days after the judgment), or a

motion for extension of time to file the notice of appeal was due fifteen days later on May 12, 2010.

See TEX . R. APP . P. 26.1, 26.3. Payne did not file a timely notice of appeal or a motion for extension

of time to file the notice of appeal. However, on June 29, 2010, Payne filed a notice of appeal.

We ordered Payne to file a response showing cause why this appeal should not be dismissed

for lack of jurisdiction. Payne has filed a response in which he asserts that we failed to consider his

motion to file an amended complaint, filed February 5, 2010, and his “Motion to Answer,” filed

April 12, 2010. We have reviewed both the referenced pleadings. However, neither document can

fairly be construed as indicating a desire to appeal the trial court’s judgment. See TEX . R. APP . P.

25.1. Because Payne failed to timely perfect the appeal, we lack jurisdiction to consider it.

We dismiss the appeal for lack of jurisdiction.

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