William Anthony Johnston v. Edward F. Romano III, Mark B. Myers and Karen Myers

Court of Appeals of Texas

William Anthony Johnston v. Edward F. Romano III, Mark B. Myers and Karen Myers

DecidedFebruary 27, 1997

Docket03-96-00456-CV

StatusPublished

This text of William Anthony Johnston v. Edward F. Romano III, Mark B. Myers and Karen Myers (William Anthony Johnston v. Edward F. Romano III, Mark B. Myers and Karen Myers) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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William Anthony Johnston v. Edward F. Romano III, Mark B. Myers and Karen Myers, (Tex. Ct. App. 1997).

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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-96-00456-CV

William Anthony Johnston, Appellant

v.

Edward F. Romano III, Mark B. Myers and Karen Myers, Appellees

FROM THE DISTRICT COURT OF HAYS COUNTY, 274TH JUDICIAL DISTRICT

NO. 95-0663-F, HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING

PER CURIAM

The first judgment in the underlying cause was signed February 12, 1996. Appellees Edward F. Romano III, Mark B. Myers, and Karen Myers filed a motion to modify the judgment on March 7, 1996. The motion was granted by a second judgment signed on April 11, 1995. Appellant William Anthony Johnston posted a cash deposit on June 19, 1996.

An appellant must ordinarily perfect an appeal within thirty days of the date the judgment was signed. Tex. R. Ap. P. 41(a). However, if a motion for new trial or a motion to modify is timely filed, the time within which to appeal is extended to ninety days. Id. Authority exists for holding that a motion for a new trial or motion to modify a judgment can extend the appellate timetable even after a second judgment is signed. See, e.g., Tex. R. App. P. 58; Syn-Labs, Inc. v. Franz, 778 S.W.2d 202, 205 (Tex. App.--Houston [1st Dist.] 1989, no writ). However, the timetable is usually extended only if the substance of the motion relating to the first judgment could properly be raised with respect to the second judgment. Dunn v. City of Tyler, 848 S.W.2d 305, 306 (Tex. App.--Eastland 1993, no writ). Since appellee's motion to modify was actually granted by the trial court, the motion does not assail the second judgment. Therefore, the appellant timetable was not extended after the second judgment was signed and appellant's cash deposit should have been filed by May 19, 1996.

The Clerk of this Court advised Johnston that it could not file the tendered transcript since the appeal did not seem to be timely and invited Johnston to file a motion to continue the appeal by September 3, 1996. Johnston has not filed a motion to continue. On the record before us, we have no jurisdiction.

We dismiss the appeal for want of jurisdiction. Tex. R. App. P. 60(a)(2).

Before Chief Justice Carroll, Justices Aboussie and B. A. Smith

Appeal Dismissed for Want of Jurisdiction

Filed: February 27, 1997

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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-96-00456-CV

William Anthony Johnston, Appellant

v.

Edward F. Romano III, Mark B. Myers and Karen Myers, Appellees

FROM THE DISTRICT COURT OF HAYS COUNTY, 274TH JUDICIAL DISTRICT

NO. 95-0663-F, HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING

PER CURIAM

The first judgment in the underlying cause was signed February 12, 1996. Appellees Edward F. Romano III, Mark B. Myers, and Karen Myers filed a motion to modify the judgment on March 7, 1996. The motion was granted by a second judgment signed on April 11, 1995. Appellant William Anthony Johnston posted a cash deposit on June 19, 1996.

An appellant must ordinarily perfect an appeal within thirty days of the date the judgment was signed. Tex. R. Ap. P. 41(a). However, if a motion for new trial or a motion to modify is timely filed, the time within which to appeal is extended to ninety days. Id. Authority exists for holding that a motion for a new trial or motion to modify a judgment can extend the appellate timetable even after a second judgment is signed. See, e.g., Tex. R. App. P. 58; Syn-Labs, Inc. v. Franz, 778 S.W.2d 202, 205 (Tex. App.--Houston [1st Dist.] 1989, no writ). However, the timetable is usually extended only if the substance of the motion relating to the first judgment could properly be raised with respect to the second judgment. Dunn v. City of Tyler, 848 S.W.2d 305, 306 (Tex. App.--Eastland 1993, no writ). Since appellee's motion to modify was actually granted by the trial court, the motion does not assail the second judgment. Therefore, the appellant timetable was not extended after the second judgment was signed and appellant's cash deposit should have been filed by May 19, 1996.

The Clerk of this Court advised Johnston that it could not file the tendered transcript since the appeal did not seem to be timely and invited Johnston to file a motion to continue the appeal by September 3, 1996. Johnston has not filed a motion to continue. On the record before us, we have no jurisdiction.

We dismiss the appeal for want of jurisdiction. Tex. R. App. P. 60(a)(2).

Before Chief Justice Carroll, Justices Aboussie and B. A. Smith

Appeal Dismissed for Want of Jurisdiction

Filed: February 27, 1997

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