Roger Kroschel, Jr., Next Friend to Roger Kroschel, III v. San Angelo Fat Stock and Rodeo Association, Inc., Kermit Wendland and Jimmy Belcher

• Court: Court of Appeals of Texas
• Decided: October 23, 1997
• Docket: 03-97-00542-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

---

NO. 03-97-00542-CV

---

Roger Kroschel, Jr., Next Friend to Roger Kroschel, III, Appellant

v.

San Angelo Fat Stock and Rodeo Association, Inc., Kermit Wendland and

Jimmy Belcher, Appellees

FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT

NO. B-96-0836-C, HONORABLE DICK ALCALA, JUDGE PRESIDING

PER CURIAM

Roger Kroschel, Jr. attempts to appeal the district court's order granting a final summary judgment in favor of the San Angelo Fat Stock Show and Rodeo Association, Inc., Kermit Wendland, and Jimmy Belcher. Because Kroschel failed to file timely a perfecting instrument, we will dismiss the appeal for want of jurisdiction.

The trial court signed the judgment on May 12, 1997. Kroschel filed a motion for new trial on June 11, 1997. Consequently, Kroschel had ninety days to perfect an appeal--from May 13, 1997, to August 11, 1997. Tex. R. App. P. 41(a)(1) (see new Rule of Appellate Procedure 26.1(a)); Tex. R. Civ. P. 329b; Sur v. R.W. Otts, Inc., 800 S.W.2d 647, 648 (Tex. App.--Houston [14th Dist.] 1990, writ denied).

In reviewing the submitted transcript, the Clerk of this Court noted that Kroschel's cost bond was untimely filed on August 13, 1997. Kroschel had fifteen days after August 11, until August 26, to file a motion to extend time to file a perfecting instrument, however, he failed to do so. Tex. R. App. P. 41(a)(2) (see new Rule of Appellate Procedure 26.3).

The Clerk of this Court sent a letter to the parties questioning the timeliness of Kroschel's perfecting instrument. The Clerk gave the parties fourteen days to respond and show grounds for continuing the appeal or the cause would be dismissed for want of jurisdiction. Tex. R. App. P. 60(a)(2) (see new Rule of Appellate Procedure 42.3(a)). The Clerk has received no response from any party.

The time period for filing a perfecting instrument is jurisdictional. Federal Lanes, Inc. v. City of Houston, 905 S.W.2d 686, 689 (Tex. App.--Houston [1st Dist.] 1995, writ denied); see also Richie v. Ranchlander Nat'l Bank, 724 S.W.2d 851, 854-55 (Tex. App.--Austin 1986, no writ) (citing Davies v. Massey, 561 S.W.2d 799, 801 (Tex. 1978)). When an appellant fails to timely file a perfecting instrument or properly seek an extension of time to file a perfecting instrument, the appellate court must dismiss the cause for lack of jurisdiction. Gonzales v. Doctors Hosp.--East Loop, 814 S.W.2d 536, 537 (Tex. App --Houston [1st Dist.] 1991, no writ).

Because Kroschel's perfecting instrument was not timely filed, this Court is without jurisdiction over the appeal. The appeal is dismissed for want of jurisdiction.

Before Chief Justice Carroll, Justices Jones and Kidd

Dismissed for Want of Jurisdiction

Filed: October 23, 1997

Do Not Publish