Summary
In Rios, the party attempting to bring a restricted appeal filed a motion for new trial within thirty days of the date of the trial court's judgment.
Summary of this case from In re Estate of HeadOpinion
No. 05-01-01284-CV.
Opinion Filed February 6, 2003.
Appeal from the County Court at Law No. 3, Dallas County, Texas, Trial Court Cause No. CC-99-8888-C.
DISMISSED.
MEMORANDUM OPINION
We deny appellant's motion for rehearing and for en banc review. On our own motion, we withdraw our memorandum opinion of August 5, 2002 and vacate our judgment of that date. This is now the opinion of the court.
Appellant Robert Rios appeals the trial court's order dismissing his claims and granting a default judgment in favor of appellee Jody Willingham. Appellant argues the trial court erred because it failed to provide notice of the trial setting or its intention to dismiss appellant's case, and because it erroneously denied his motion for new trial. The facts of this case are known to the parties, and the issues are settled in law; therefore, we issue this memorandum opinion. Tex.R.App.P. 47.2(a), 47.4. We dismiss this appeal for want of jurisdiction because appellant's notice of appeal was not timely, and, because appellant may not file a restricted appeal because he filed a timely postjudgment motion.
We recognized the trial court's judgment in this case uses incongruent language by which is grants a default judgment in favor of Willingham, and a take nothing judgment "for failure to appear" against Rios. Rios does not contend, and we do not address, whether the trial court's judgment effectively dismissed Rios's suit or entered judgment against him.
The record in this case shows the trial court signed a final default judgment against appellant on April 26, 2001. Appellant's "motion to set aside default judgment and motion for new trial" was received by the Dallas County Clerk's office on May 25, 2001, but was not file-stamped until May 31, 2001. See Tex.R.Civ.P. 329b(a). Appellant filed his notice of appeal and motion for extension of time to file notice of appeal on August 13, 2001, or 109 days after the default judgment was signed. See Tex.R.App.P. 26.1(a) (notice of appeal must be filed within ninety days after judgment signed if timely motion for new trial filed). In a prior order, we denied the motion for extension of time to file a notice of appeal, but granted appellant's alternative request that his notice of appeal be considered a notice of restricted appeal under Tex.R.App.P. 30. See Tex.R.App.P. 26.1(c) (notice of appeal in restricted appeal must be filed within six months after judgment or order is signed).
We conclude appellant's motion for new trial was timely filed when he tendered it to the clerk on May 25, 2001. "When a dispute arises as to the filing date of an instrument essential to a court's appellate jurisdiction, the date the instrument is tendered to the clerk controls, and not the file-stamp date." Coastal Banc SSB v. Helle, 988 S.W.2d 214, 216 (Tex. 1999). A "document is `filed' when it is tendered to the clerk, or otherwise put under the custody or control of the clerk." Jamar v. Patterson, 868 S.W.2d 318, 319 (Tex. 1993).
Appellant filed a sworn motion for extension of time to file notice of appeal stating the motion for new trial was delivered to the Dallas County Clerk's office by overnight courier on May 25, 2001 and signed for by an A. Smith. At the request of our clerk, the Dallas County Clerk filed an affidavit in this appeal explaining the duties of Ms. A. Smith and the procedures for file marking documents delivered by certified mail, FedEx, and priority mail. This affidavit states the normal procedure is for the appropriate section to file-mark the document and then forward it to the proper court, but that on the day in question the document was forwarded to the court without being file-marked. We may consider affidavits and other matters in the record to determine questions of our jurisdiction. Coastal Banc, 988 S.W.2d at 216; see also Tex. Gov't Code Ann. § 22.220(c) (Vernon 1988) ("Each court of appeals may, on affidavit or otherwise, as the court may determine, ascertain the matters of fact that are necessary to the proper exercise of its jurisdiction."). Appellant's sworn motion for extension of time to file notice of appeal and the affidavit of the Dallas County Clerk establish that appellant's motion for new trial was tendered to the clerk or otherwise put under the custody or control of the clerk on May 25, 2001. Thus, the motion for new trial was timely filed. Jamar, 868 S.W.2d at 319.
The timely motion for new trial extended the time for filing a notice of appeal until July 25, 2001. See Tex.R.App.P. 26.1(a). Thus, the fifteen-day period for filing a motion to extend the time to file a notice of appeal under appellate rule 26.3 expired on August 9, 2001. See Tex.R.App.P. 26.3. Appellant did not file his notice of appeal and motion to extend time to file notice of appeal until August 13, 2001. Thus, although appellant's motion for new trial was timely filed, both appellant's notice of appeal and his motion for extension of time to file the notice of appeal were not timely. Tex.R.App.P. 26.1(a), 26.3.
A timely notice of appeal is a requirement for our jurisdiction. Lab. Corp. of Am. v. Mid-Town Surgical Ctr., Inc., 16 S.W.3d 527, 529 (Tex.App.-Dallas 2000, no pet.). In this case, appellant did not file a timely notice of appeal and is not entitled to an extension of time to file notice of appeal under appellate rule 26.3. Accordingly, we lack jurisdiction over the appeal.
Further, because appellant timely filed a motion for new trial, he may not pursue a restricted appeal under Tex.R.App.P. 30. Rule 30 permits a restricted appeal only when the appellant "did not participate — either in person or through counsel — in the hearing that resulted in the judgment complained of" and " did not timely file a postjudgment motion." Id. (emphasis added); see also Lab. Corp. 16 S.W.3d at 528. Appellant filed a timely motion for new trial. Therefore, he may not bring a restricted appeal under appellate rule 30. Accordingly, we lack jurisdiction over appellant's attempt to file a restricted appeal.
We dismiss the appeal for want of jurisdiction.