Thomas Florence v. Zack Shelly and Wanette Florence

Opinion

Opinion issued April 24, 2014

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-13-00730-CV ——————————— THOMAS FLORENCE, Appellant V. ZACK SHELLY AND WANETTE FLORENCE, Appellees

On Appeal from the County Court at Law No. 1 Galveston County, Texas Trial Court Case No. CV-0063919

MEMORANDUM OPINION

Appellant, Thomas Florence, seeks to appeal an order of the trial court

dismissing his underlying case for want of prosecution. We dismiss the appeal.

Generally, a notice of appeal is due within thirty days after the judgment is

signed. See TEX. R. APP. P. 26.1. The deadline to file a notice of appeal is extended to 90 days after the date the judgment is signed if, within 30 days after the

judgment is signed, any party timely files a motion for new trial, motion to modify

the judgment, motion to reinstate, or, under certain circumstances, a request for

findings of fact and conclusions of law. See id.; TEX. R. CIV. P. 329b(a), (g). The

time to file a notice of appeal may also be extended if, within 15 days after the

deadline to file the notice of appeal, a party properly files a motion for extension.

See TEX. R. APP. P. 10.5(b), 26.3. 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 Texas Rule of Appellate Procedure 26.1, but within the 15-day

extension period provided by Rule 26.3. See TEX. R. APP. P. 26.1, 26.3; Verburgt v.

Dorner, 959 S.W.2d 615, 617–18 (Tex. 1997).

Furthermore, if a party does not receive notice or acquire actual knowledge

that a judgment or appealable order was signed within 20 days of the signing, the

date the filing periods discussed above commence can be changed from the date

the judgment or appealable order is signed to the date the party first received notice

or acquired actual knowledge of the signing. See TEX. R. APP. P. 4.2; TEX. R. CIV.

P. 306a(4). To invoke one of these rules, the party must file a sworn motion,

provide notice to the other parties, and prove in the trial court the date that notice

was received or acquired. See TEX. R. APP. P. 4.2(b); TEX. R. CIV. P. 306a(5); see

also In re Lynd Co., 195 S.W.3d 682, 685 (Tex. 2006); In re Bokeloh, 21 S.W.3d

2 784, 791 (Tex. App.—Houston [14th Dist.] 2000, orig. proceeding). The filing

periods may not, however, begin more than 90 days after the date of signing;

therefore, the party must receive notice or acquire actual knowledge of the signing

within 90 days of the date the judgment or order is signed for these rules to apply.

See Lynd, 195 S.W.3d at 683, 685; Levit v. Adams, 850 S.W.2d 469, 470 (Tex.

1993); Bokeloh, 21 S.W.3d at 791.

Here, the trial court signed the final judgment on March 20, 2013. Therefore,

a motion for new trial was due by April 19, 2013. See TEX. R. CIV. P. 329b(a) (“A

motion for new trial, if filed, shall be filed prior to or within thirty days after the

judgment or other order complained of is signed.”). Florence filed an untimely

motion for new trial on June 28, 2013. Because Florence’s motion for new trial

was untimely, his notice of appeal remained due by April 19, 2013, or by May 6,

2013 with a 15-day extension. See TEX. R. APP. P. 26.1(a), 26.3; see also Deaton v.

Citibank, N.A., No. 01-12-00752-CV, 2012 WL 5878111, at *1 (Tex. App.—

Houston [1st Dist.] Nov. 21, 2012, no pet.) (untimely motion for new trial does not

extend deadline for filing notice of appeal). Florence filed an untimely notice of

appeal on August 5, 2013. See TEX. R. APP. P. 26.1. Without a timely filed notice

of appeal, this Court lacks jurisdiction over the appeal. See TEX. R. APP. P. 25.1.

On September 30, 2013, we notified Florence that his appeal was subject to

dismissal for want of jurisdiction unless he filed a response showing grounds for

3 continuing the appeal. See TEX. R. APP. P. 42.3(a). On October 11, 2013, Florence

filed a response alleging that he was unaware of the trial court’s order dismissing

his case for want of prosecution until after he requested an update from the trial

court clerk. Florence, however, fails to demonstrate—and the record does not

show—that he filed a sworn motion and notice in the trial court establishing the

date that he first received notice of the judgment or acquired actual knowledge of

the judgment. See TEX. R. APP. P. 4.2(b); TEX. R. CIV. P. 306a(5); see also Brown

Mech. Servs., Inc. v. Mountbatten Sur. Co., 377 S.W.3d 40, 44 (Tex. App.—

Houston [1st Dist.] 2012, no pet.) (holding that appellant failed to establish

application of Texas Rule of Civil Procedure 306a(4) because record did not

contain sworn motion establishing facts for late notice required by Rule 306a(5)).

As a result, Florence’s response fails to show grounds for continuing this appeal.

Accordingly, we dismiss the appeal for want of jurisdiction. See TEX. R.

APP. P. 43.2(f). We dismiss any pending motions as moot.

PER CURIAM Panel consists of Justices Keyes, Bland, and Brown.