Opinion
05-23-00007-CV
04-10-2023
JIM LAKE, INC. A/K/A JIM LAKE COMPANY, Appellant v. STANTEC CONSULTING SERVICES, INC., Appellee
On Appeal from the 101st Judicial District Court Dallas County, Texas Trial Court Cause No. DC-21-15852
ORDER
KEN MOLBERG, JUSTICE
This appeal from a default judgment was filed within ninety days of judgment pursuant to Texas Rule of Appellate Procedure 26.1(a). Rule 26.1 sets the deadline for filing a notice of appeal at ninety days from the date of judgment when a motion for new trial is timely filed, and appellant filed a motion for new trial. See Tex. R. App. P. 26.1(a)(1). The motion, however, did not appear timely, having been filed one day past the thirty-day deadline set in Texas Rule of Civil Procedure 329b(a). Accordingly, we questioned our jurisdiction over the appeal and directed appellant to file either a letter brief demonstrating the appeal was timely filed or, pursuant to appellate rules 25.1(d)(7) and 30, an amended notice of restricted appeal. See Tex. R. App. P. 25.1(d) (stating the required contents for notice of restricted appeal); 30 (providing for restricted appeal where party did not participate in hearing that resulted in appealed judgment and did not timely file post-judgment motion). Appellant complied by filing a letter brief and an amended notice of appeal that included a "conditional notice of restricted appeal".
Appellant's letter brief explained the motion for new trial was filed timely with the trial court clerk but "file-stamped" late because the fee for filing a motion for new trial was not paid until the day after the motion was filed. Based on Jamar v. Patterson, 868 S.W.2d 318, 319 (Tex. 1993) (per curiam), which noted that, for appeal purposes, the date of filing is the date the document is first tendered to the clerk, we informed appellant by letter that it appeared the motion for new trial was timely filed and we had jurisdiction over the appeal. The following day, apparently unaware of our letter, appellant filed a notice of restricted appeal "without waiver or prejudice".
Because the motion for new trial was timely filed, the appeal is proceeding as a regular appeal. Accordingly, we STRIKE the amended notice of appeal and the notice of restricted appeal.