Vanessa Aleman v. Aparicio Gonzalez, Oakcliff Hampton, Inc. and Dolgencorp of Texas, Inc. D/B/A Dollar General Store

• Court: Court of Appeals of Texas
• Decided: December 22, 2022
• Docket: 05-22-01104-CV
• Status: Published

Opinion

DISMISS and Opinion Filed December 22, 2022

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-01104-CV

VANESSA ALEMAN, Appellant V. APARICIO GONZALEZ, Appellee

On Appeal from the 193rd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-19-01138

MEMORANDUM OPINION Before Chief Justice Burns, Justice Molberg, and Justice Pedersen, III Opinion by Chief Justice Burns On June 15, 2022, the trial court signed a judgment dismissing the underlying

case for want of prosecution. Appellant filed a timely motion to reinstate.1 In the

notice of appeal filed on October 12, 2022, appellant states she is appealing from the

trial court’s September 15, 2022 order denying her motion to reinstate the case.

Before the Court is appellee’s motion to dismiss the appeal for want of jurisdiction

asserting the appeal is untimely. Although given an opportunity to file a response,

appellant did not do so.

1 The motion to reinstate was filed on June 22, 2022 and is viewable on the trial court’s website. When a party files a timely post-judgment motion extending the appellate

timetable, the notice of appeal is due ninety days after the judgment is signed or,

with an extension motion, fifteen days after the deadline. See TEX. R. APP. P.

26.1(a); 26.3. Without a timely notice of appeal, this Court lacks jurisdiction. See

Brashear v. Victoria Gardens of McKinney, L.L.C., 302 S.W.3d 542, 545 (Tex.

App.—Dallas 2009, no pet.) (op. on reh’g).

A motion to reinstate extends the appellate deadline. See TEX. R. APP. P.

26.1(a)(3). However, the appealable order is the dismissal order, not the order

denying a motion to reinstate. See Weik v. Second Baptist Church of Houston, 988

S.W.2d 437, 438 (Tex. App.—Houston [1st Dist.] 1999, pet. denied). The time to

file the notice of appeal runs from the signing of the dismissal order. See id.

The dismissal order was signed on June 15, 2022 and appellant filed a timely

motion to reinstate on June 22nd. Accordingly, the notice of appeal was due on

September 13th or, with an extension motion, September 28th. Appellant filed a

notice of appeal on October 12th, fourteen days late. Because appellant failed to

timely appeal, we grant appellee’s motion and dismiss the appeal. See TEX. R. APP.

P. 42.3(a).

/Robert D. Burns, III/ ROBERT D. BURNS, III CHIEF JUSTICE

221104F.P05

–2– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

VANESSA ALEMAN, Appellant On Appeal from the 193rd Judicial District Court, Dallas County, Texas No. 05-22-01104-CV V. Trial Court Cause No. DC-19-01138. Opinion delivered by Chief Justice APARICIO GONZALEZ, Appellee Burns. Justices Molberg and Pedersen, III participating.

In accordance with this Court’s opinion of this date, the appeal is DISMISSED.

It is ORDERED that appellee APARICIO GONZALEZ recover his costs of this appeal from appellant VANESSA ALEMAN.

Judgment entered December 22, 2022

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