Opinion
No. 04-05-00176-CV
Delivered and Filed: June 15, 2005.
Appeal from the 288th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CI-07806, Honorable John J. Specia, Jr., Judge Presiding.
Dismissed for Lack of Jurisdiction.
Sitting: Karen ANGELINI, Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Because Appellant Robert L. Dalglish did not file a timely notice of appeal, we dismiss this appeal for lack of jurisdiction.
The trial court signed a final judgment on September 20, 2004. Dalglish filed a timely motion for new trial on October 5, 2004. Therefore, the notice of appeal was due to be filed on December 20, 2004. See Tex.R.App.P. 26.1(a). A motion for extension of time to file the notice of appeal was due on January 4, 2005. See Tex.R.App.P. 26.3. Dalglish, however, did not file his notice of appeal until January 12, 2005. Therefore, on March 25, 2005, we ordered Dalglish to show cause why this appeal should not be dismissed for lack of jurisdiction.
On April 13, 2005, Dalglish filed a response, raising several arguments. In our order of April 20, 2005, we explained why those arguments have no merit. First, Dalglish argued that the trial court's judgment of September 20, 2004, was not a final judgment. In our order of April 20, 2005, we explained that a judgment is final for purposes of appeal if it disposes of all pending parties and claims in the record. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Whether a judicial decree is a final judgment must be determined from its language and the record in the case. Id. Here, Dalglish sued Bill Sutton and Allstate Insurance Company for various claims. The trial court's judgment grants Bill Sutton and Allstate Insurance Company's no-evidence and traditional motion for summary judgment:
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED, that Defendants' No-Evidence and Traditional Motion for Summary Judgment as to all of Plaintiff's claims is GRANTED and that Plaintiff take nothing by way of against Defendants, ALLSTATE INSURANCE COMPANY and BILL SUTTON.
(emphasis added). This judgment, disposing of all pending parties and claims, is a final judgment.
Dalglish also argued that the trial court's order denying the motion for new trial was a second judgment, thereby extending appellate deadlines. According to Dalglish, the trial court heard new "substantive issues" during the motion for new trial. Thus, Dalglish argued that the trial court's order denying the motion for new trial was a new judgment. In our order of April 20, 2005, we again explained why Dalglish's argument was incorrect. In its order, the trial court merely states that appellant's motion for new trial is "DENIED based on the findings herein that Plaintiff does not raise a cause of action." This language does not modify, vacate, correct, or reform the judgment. See Lane Bank Equip. Co. v. Smith Southern Equip., Inc., 10 S.W.3d 308, 313 (Tex. 2000). It merely gives the reason why the trial court denied the motion for new trial.
Although Dalglish's response did not raise any meritorious arguments, it did, as noted in our order April 20, 2005, state that his notice of appeal was mailed on January 3, 2005. If true, then pursuant to Texas Rule of Civil Procedure 5, the notice of appeal would be deemed filed within the fifteen-day grace period allowed by Texas Rule of Appellate Procedure 26.3. Although Dalglish did not file a motion for extension of time to file his notice of appeal, 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 rule 26.1 but within the fifteen-day grace period provided by rule 26.3 for filing a motion for extension of time. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (construing the predecessor to rule 26). However, an appellant must offer a reasonable explanation for failing to file the notice of appeal in a timely manner. See id.; Tex.R.App.P. 26.3, 10.5(b)(1)(C).
Therefore, in our order of April 20, 2005, we ordered Dalglish to file a written response showing proof that the notice of appeal was mailed timely in compliance with Texas Rule of Civil Procedure 5 and presenting a reasonable explanation for failing to file the notice of appeal in a timely manner.
On May 10, 2005, Dalglish filed a written response. On May 13, 2005, we issued an order finding that the response was sufficient to show proof that the notice of appeal was mailed within the fifteen-day grace period and finding Dalglish's explanation reasonable. See Verburgt, 959 S.W.2d at 617. We, therefore, granted Dalglish's implied motion for extension of time to file the notice of appeal and ordered this appeal retained on the court's docket. We also denied appellees' motion to dismiss for lack of jurisdiction and for want of prosecution.
On May 16, 2005, appellees filed an "Amended Motion to Dismiss for Want of Jurisdiction, or in the Alternative, Motion for Want of Prosecution." In their motion, appellees argue that the affidavits Dalglish attached to his response to this court's show cause order are insufficient. Specially, appellees argue that the affidavits of Karen Dalglish Seal, attorney for Dalglish, and Seal's legal assistant, Kassandra Levay, do not show compliance with Texas Rule of Civil Procedure 5. We agree. Rule 5 provides the following:
If any document is sent to the proper clerk by first-class United States mail in an envelope or wrapper properly addressed and stamped and is deposited in the mail on or before the last day for filing same, the same, if received by the clerk not more than ten days tardily, shall be filed by the clerk and be deemed filed in time. A legible postmark affixed by the United States Postal Service shall be prima facie evidence of the date of mailing.
Tex. R. Civ. P. 5. Karen Dalglish Seal's affidavit affirms that on January 3, 2005, she gave the notice of appeal to her legal assistant along with a manila envelope and instructed her legal assistant to mail three copies. Kassandra Levay's affidavit affirms that on January 3, 2005, Karen Dalglish Seal "asked me to mail the Notice [of appeal] to the Court which I did that day." The affidavits do not state that the notice was mailed by first-class United States mail, nor do they state that the notice was addressed to the proper clerk. Levay's affidavit merely states that she mailed the notice to the Court. We agree with appellees that the affidavits do not comply with rule 5. See Arnold v. Shuck, 24 S.W.3d 470, 472-73 (Tex.App.-Texarkana 2000, pet. denied) (holding that affidavit was insufficient under rule 5 because it did not state that the pleading had been mailed by first-class mail and because it did not state whether the proper address was on the envelope). And, despite having more than twenty days, Dalglish has failed to respond to appellees' amended motion to dismiss.
Because the affidavits do not comply with rule 5, the notice of appeal was not timely filed. As such, our jurisdiction was not invoked.
We, therefore, withdraw our order of May 13, 2005, and grant appellees' amended motion to dismiss for lack of jurisdiction. We dismiss this appeal for lack of jurisdiction.