Opinion
NO. 01-18-00029-CV
04-24-2018
JANE WINNOW, Appellant v. TEXAS WORKFORCE COMMISSION APPEALS, Appellee
On Appeal from the 269th District Court Harris County, Texas
Trial Court Case No. 2013-30428
MEMORANDUM OPINION
Appellant, Jane Winnow, proceeding pro se, attempts to appeal from the trial court's order, signed on March 4, 2016, dismissing the case for want of prosecution by filing a notice of appeal on January 18, 2018, which we construe as a notice of restricted appeal. We dismiss this appeal for want of jurisdiction.
Generally, a notice of appeal is due within thirty days after the final judgment is signed. See TEX. R. APP. P. 26.1. The deadline to file a notice of appeal is extended to ninety days after the date the judgment is signed if, within thirty days after the judgment is signed, any party timely files a motion for new trial, motion to modify the judgment, motion to reinstate, or, under certain circumstances, a request for findings of fact and conclusions of law. See id. 26.1(a); TEX. R. CIV. P. 329b(a), (g). The time to file a notice of appeal may also be extended if, within fifteen days after the deadline to file the notice of appeal, a party properly files a motion for extension. See TEX. R. APP. P. 10.5(b), 26.3.
The district clerk categorized this appeal as a restricted appeal. However, to qualify for a restricted appeal, an appellant must establish that: (1) she filed the notice of restricted appeal within six months after the judgment or order appealed from was signed; (2) she was a party to the underlying suit; (3) she did not timely file a post-judgment motion or request for findings of fact and conclusions of law, or notice of appeal; (4) she did not participate, either in person or through counsel, in the hearing that resulted in the judgment complained of; and (5) the trial court erred and the error is apparent from the face of the record. See Bassie v. Citibank (S. Dakota) N.A., No. 01-05-00943-CV, 2006 WL 181514, at *1 (Tex. App.—Houston [1st Dist.] Jan. 26, 2006, no pet.) (per curiam) (mem. op.) (citing, inter alia, TEX. R. APP. P. 30, 26.1(c)).
Here, Winnow's notice of appeal was filed on January 18, 2018, more than one year and four months past the restricted-appeal deadline of September 6, 2016, six months after the March 4, 2016 order. See TEX. R. APP. P. 4.1(a), 26.1(c), 30. Thus, to the extent that Winnow claims that this appeal qualifies as a restricted appeal, she failed to comply with the first requirement because she did not timely file a notice of restricted appeal within six months of the March 4, 2016 order, or by September 6, 2016. Without a timely filed notice of appeal, this Court lacks jurisdiction over this appeal. See id. 25.1, 26.1(c).
On March 20, 2018, the Clerk of this Court notified Winnow that this appeal was subject to dismissal for want of jurisdiction unless she timely responded within ten days of that notice and showed how this Court had jurisdiction. See TEX. R. APP. P. 42.3(a), (c). Winnow failed to timely respond to the notice.
If a party claims, as Winnow did in her notice of appeal, that she did not receive notice or acquire actual knowledge that a judgment was signed within 20 days of the signing, the date the filing period discussed above commences can be changed from the date the judgment is signed to the date the party first received notice or acquired actual knowledge of the signing. See TEX. R. APP. P. 4.2(a)(1); TEX. R. CIV. P. 306a(4). However, to invoke one of these rules, the party must file a sworn motion, provide notice to the other parties, and prove in the trial court the date that notice was received or acquired. TEX. R. APP. P. 4.2(b), (c); TEX. R. CIV. P. 306a(5); see In re Lynd Co., 195 S.W.3d 682, 685 (Tex. 2006) (orig. proceeding). The filing periods may not, however, begin more than 90 days after the date of signing; therefore, the party must have received notice or acquired actual knowledge of the signing within 90 days of the date the judgment or order is signed for these rules to apply. See Lynd, 195 S.W.3d at 683, 685.
The clerk's record does not indicate that any sworn motion was filed by Winnow under Rule 306a in the trial court within 90 days of the March 4, 2016 order. Thus, Winnow's notice of appeal has failed to show how this Court has jurisdiction over her untimely restricted appeal. See TEX. R. APP. P. 26.1(c).
Accordingly, we dismiss this appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a); 43.2(f). We dismiss any pending motions as moot.
PER CURIAM Panel consists of Justices Jennings, Keyes, and Higley.