Tim James McMahan v. Brendan W. Guy and Stephen Tyler

• Court: Court of Appeals of Texas
• Decided: September 23, 2021
• Docket: 13-20-00435-CV
• Status: Published

Opinion

NUMBER 13-20-00435-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG ____________________________________________________________

TIM JAMES MCMAHAN, Appellant,

v.

BRENDAN W. GUY AND STEPHEN TYLER, Appellees. ____________________________________________________________

On appeal from the 267th District Court of Victoria County, Texas. ____________________________________________________________

MEMORANDUM OPINION Before Justices Benavides, Longoria, and Tijerina Memorandum Opinion by Justice Tijerina

Appellant, Tim James McHahan, attempted to perfect an appeal from an order

granting a plea to the jurisdiction entered by the 267th District Court of Victoria County,

Texas, in cause number 18-05-82631-C. We dismiss the appeal for want of jurisdiction. I. BACKGROUND

On June 16, 2020, the trial court signed a judgment granting the plea to the

jurisdiction and dismissing the underlying cause. On October 21, 2020, appellant filed a

notice of appeal. The Clerk of the Court notified appellant the appeal was not timely filed,

and appellant responded that he never received the final judgment until, after many

efforts, he received a courtesy copy of the order by email on September 17, 2020.

Accordingly, on November 20, 2020, we abated the matter for the trial court to determine

when appellant received the final order. See TEX. R. CIV. P. 306a(4). Upon review of the

trial court’s findings, we have determined appellant received notice of the final judgement

on September 17, 2020.

II. ANALYSIS

When a party adversely affected by the judgment does not receive notice within

twenty days of judgment, the period for filing the appeal begins to run from the date the

party received notice, provided no more than ninety days have elapsed since the signing

of the judgment or other appealable order. See TEX. R. CIV. P. 306a(4); TEX. R. APP. P.

4.2(a)(1). This rule expressly provides that "in no event shall such periods begin more

than ninety days after the original judgment or other appealable order was signed.” In

the instant case, appellant contends that he did not receive notice of the final order until

more than 90 days after it was rendered. Accordingly, rule 306a(4) is inapplicable. See

Levit v. Adams, 850 S.W.2d 469, 470 (Tex. 1993); Jon v. Stanley, 150 S.W.3d 244, 248

(Tex. App.–Texarkana 2004, no pet.). Although the discussion during the trial court’s

hearing, and appellant’s subsequent filings, proport to extend post-judgment deadlines, it

2 cannot alter the appellate deadlines. It is “well settled” that “appellate jurisdiction cannot

be created by consent, stipulation of the parties, or waiver, either by the court or by the

litigants.” Welder v. Fritz, 750 S.W.2d 930, 932 (Tex. App.—Corpus Christi 1988, no writ);

see Stine v. State, 908 S.W.2d 429 (Tex. 1995) (“It is . . . fundamental that the parties of

a suit can neither confer nor waive jurisdiction by agreement or consent.”); Claxton v.

(Upper) Lake Fork Water Control & Improvement Dist. No. 1, 220 S.W.3d 537, 541–42

(Tex. App.—Texarkana 2007, pet. denied) (“Even if both parties agreed that a different

date [for the final judgment] actually existed, we are constrained by the rules to determine

our jurisdiction by reference to the date on which the judgment was signed.”).

III. CONCLUSION

The Court, having examined and fully considered the documents on file, and

appellant’s failure to timely perfect his appeal, is of the opinion the appeal should be

dismissed for want of jurisdiction. Accordingly, the appeal is hereby dismissed for want of

jurisdiction. See TEX. R. APP. P. 42.3(a)(c).

JAIME TIJERINA Justice

Delivered and filed on the 23rd day of September, 2021.