Opinion
No. 05-20-00720-CV
03-24-2021
IN THE ESTATE OF CONSTANCE LOU HOWELLS
On Appeal from the Collin County Probate Court Collin County, Texas
Trial Court Cause No. PB1-0258-2020
ORDER
Before Chief Justice Burns, Justice Molberg, and Justice Smith
Appellant filed both a timely motion for new trial and notice of appeal addressing three orders signed on May 4, 2020. Subsequently, appellant filed an amended notice of appeal to include the trial court's probate order, also signed on May 4th. We questioned our jurisdiction to review the probate order and, at the Court's request, appellant filed a letter brief.
Those orders were (1) order granting nonsuit, (2) order denying motion for sanctions, and (3) order to pay attorney's fees. --------
When a party does not file a timely post-judgment motion extending the appellate timetable, a notice of appeal is due thirty days or, with an extension motion, forty-five days after the date the judgment is signed. See TEX. R. APP. P. 26.1(a); 26.3. Without a timely filed notice of appeal, this Court lacks jurisdiction. See id. 25.1(b); Brashear v. Victoria Gardens of McKinney, L.L.C., 302 S.W.3d 542, 545 (Tex. App.—Dallas 2009, no pet.) (op. on reh'g) (timely filing of notice of appeal is jurisdictional). An appellate court cannot suspend operation of an appellate rule that would "alter the time for perfecting an appeal in a civil case". See TEX. R. APP. P. 2.
A party may amend a notice of appeal to correct a defect or omission in an earlier filed notice at any time before the appellant's brief is filed. See TEX. R. APP. P. 25.1(g). However, a party may not amend a notice of appeal to challenge an entirely different order than the one named in the original notice of appeal. See Rainbow Grp., Ltd. v. Wagoner, 219 S.W.3d 485, 492 (Tex. App.—Austin 2007, no pet.) (cannot amend notice of appeal to add entirely separate interlocutory order); Thomas v. Thomas, No. 14-02-01286-CV, 2003 WL 1088220, *1-2 (Tex. App.—Houston [14th Dist.] Mar. 13, 2003, no pet.) (mem. op.) (per curiam) (cannot amend notice of appeal to add separately appealable order).
In her letter brief, appellant asserts her amended notice of appeal was timely. She filed an amended motion for new trial addressing the probate order on August 18, 2020. Because the motion for new trial was filed during the trial court's plenary period, appellant asserts the time to file a notice of appeal of the probate order was extended for ninety days. See TEX. R. APP. P. 26.1(a). Appellant's assertion is incorrect. A motion for new trial must be filed within thirty days of the date the order is signed. See TEX. R. CIV. P. 329b(a). Accordingly, any motion for new trial addressing the probate order was due on or before June 3, 2020. The amended motion for new trial was untimely and did not extend the time for perfecting an appeal of the probate order.
The probate order was signed on May 4th. Appellant did not file a timely motion for new trial addressing that order. Accordingly, the notice of appeal was due on June 3rd or, with an extension motion, June 18th. Appellant's amended notice of appeal filed on August 18th to include the probate order was untimely and failed to invoke this Court's jurisdiction over that order. Accordingly, we DISMISS the appeal of the probate order.
Appellant's brief on the merits addressing the remaining orders is due April 23, 2021.
/s/ ROBERT D. BURNS, III
CHIEF JUSTICE