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English v. Dillard Dept Store

Court of Appeals of Texas, Fourteenth District, Houston
May 13, 2004
No. 14-04-00197-CV (Tex. App. May. 13, 2004)

Opinion

No. 14-04-00197-CV.

Opinion filed May 13, 2004.

On Appeal from the 295th District Court, Harris County, Texas, Trial Court Cause No. 02-55432.

Dismissed.

Panel consists of Justices FOWLER, EDELMAN, and SEYMORE.


MEMORANDUM OPINION


This is an attempted appeal from an order granting final summary judgment in favor of appellee and dismissing appellant's claims with prejudice, signed October 20, 2003. An untimely motion for new trial was filed on December 5, 2003. Appellant's notice of appeal was untimely filed on December 5, 2003.

The notice of appeal must be filed within thirty days after the judgment is signed when appellant has not filed a timely motion for new trial, motion to modify the judgment, motion to reinstate, or request for findings of fact and conclusion of law. See TEX. R. APP. P. 26.1]

Appellant's notice of appeal was not filed timely. 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, 617-189 (1997) (construing the predecessor to Rule 26). However, the appellant must offer a reasonable explanation for failing to file the notice of appeal in a timely manner. See TEX. R. APP. P. 26.3, 10.5(b)(1)(C); Verburgt, 959 S.W.2d at 617-18. Appellant's notice of appeal was not filed within the fifteen-day period provided by rule 26.3.

On April 6, 2004, notification was transmitted to all parties of the Court's intent to dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a). Appellant filed a response, claiming that he did not have notice of the judgment until November 26, 2003.

Rule 306a permits extension of post-judgment deadlines if a party does not receive notice of the judgment within twenty days after the judgment is signed. TEX. R. CIV. P. 306a(4). To be entitled to extension of deadlines, an appellant must prove the late notice by filing a sworn motion and notice of the date appellant first receiving notice of the signing of the judgment. TEX. R. CIV. P. 306a(5).

Appellant has presented this Court with a copy of a document entitled, "Plaintiff's Sworn Motion and Notice of Judgement," which bears no file stamp and is not sworn. The District Clerk's office has advised us that this motion is not in their files. Even if it were filed, it does not meet the requirements of the rule and does not extend the deadline for filing a notice of appeal. Although an inmate may file an unsworn declaration in lieu of a written sworn declaration, verification, or affidavit required by a rule of procedure, the written sworn declaration must be in writing and contain a declaration that the statements are true under penalty of perjury. Tex. Civ. Prac. Rem. Code Ann. § 132.001-.002 (Vernon 1997). Furthermore the declaration must be substantially in the form set out in section 132.003. Appellant's "sworn" motion contains no declaration that it is true under penalty of perjury and is not verified or supported by affidavit. Accordingly, appellant failed to establish late notice of the judgment. Absent proof that he did not receive notice of the judgment, the deadline for filing the notice of appeal was thirty days after the judgment was signed. Because appellant's notice of appeal was not timely filed, this Court does not have jurisdiction to entertain the appeal.

Accordingly, the appeal is ordered dismissed.


Summaries of

English v. Dillard Dept Store

Court of Appeals of Texas, Fourteenth District, Houston
May 13, 2004
No. 14-04-00197-CV (Tex. App. May. 13, 2004)
Case details for

English v. Dillard Dept Store

Case Details

Full title:JAKE A. ENGLISH, Appellant v. DILLARD DEPARTMENT STORE, INC., Appellee

Court:Court of Appeals of Texas, Fourteenth District, Houston

Date published: May 13, 2004

Citations

No. 14-04-00197-CV (Tex. App. May. 13, 2004)