Opinion
No. 05-16-00160-CV
11-18-2016
ISRAEL JUAREZ, Appellant v. LEONARDO BRAVO AND MARIA BRAVO, Appellees
On Appeal from the 160th Judicial District Court Dallas County, Texas
Trial Court Cause No. DC-12-01788
MEMORANDUM OPINION
Before Chief Justice Wright, Justice Lang-Miers, and Justice Stoddart
Opinion by Chief Justice Wright
This Court questioned its jurisdiction over this appeal from the trial court's turnover order because it appeared the notice of appeal was untimely. We instructed the parties to file letter briefs addressing our concern.
When a timely post-judgment motion extending the appellate timetable is filed, a notice of appeal is due ninety days after the date the judgment is signed. See TEX. R. APP. P. 26.1(a). Without a timely filed notice of appeal, this Court lacks jurisdiction. See TEX. R. APP. P. 25.1(b). A court of appeals has jurisdiction over any appeal in which the appellant files an instrument in a good faith attempt to invoke the appellate court's jurisdiction. Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997).
The trial court signed the order on October 29, 2015. Appellant filed a timely motion for new trial on Monday, November 30, 2015. Accordingly, the notice of appeal was due on January 27, 2016, ninety days after the date the judgment was signed or, with an extension motion, February 11, 2016. See TEX. R. APP. P. 26.1(a), 26.3. Appellant filed a notice of appeal on February 15, 2016, nineteen days past the deadline.
In his jurisdictional brief, appellant asserts two alternative grounds as support that he timely filed a notice of appeal. First, appellant relies on the October 22, 2015 "Notice of Appeal and Request for De Novo Hearing" he filed from the visiting judge's turnover order. Appellant filed this document under the mistaken belief that the visiting judge who heard the motion for turnover order was an associate judge. Appellant contends this document is sufficient to invoke this Court's jurisdiction over the appeal. See Duran v. Tex. Dep't of Protective & Regulatory Servs., 281 S.W.3d 9 (Tex. App.—El Paso 2005, no pet.). In Duran, an associate judge signed a report recommending termination of the appellant's parental rights on December 1, 2003. Id. at 10. Two days later, the trial court signed an order adopting the associate judge's report. Id. The pro se appellant hand-delivered to the appellate court on December 5th a document titled "Respondent's Notice of Appeal from Associate Judge's Order of Termination." Id. at 10. The appellate court notified the appellant that it did not have jurisdiction to file her appeal and forwarded the notice of appeal to the trial court. Id. Subsequently, the trial court conducted a hearing and granted a motion to deny the appellant's request for a de novo hearing because the notice of appeal did not specify any findings or conclusions that were being objected to sufficient to confer jurisdiction on the referring court. See id. at 11. The appellant then filed another notice of appeal in the appellate court. The appellee moved to dismiss, arguing the notice of appeal was untimely. The appellate court disagreed stating "upon closer examination of [the December 5th notice of appeal filed with the appellate court], the appeal was directly from the trial court's adoption of the associate judge's recommendation to terminate parental rights." See id.
In Duran, the appellant delivered the notice of appeal to the appellate court in an attempt to invoke that court's jurisdiction. This distinguishing fact renders the holding in Duran inapplicable to this case. Appellant filed his "Notice of Appeal and Request for De Novo Hearing" in the trial court which he mistakenly thought was the referring court. Regardless of appellant's mistake, nothing in the document attempts to invoke this Court's appellate jurisdiction. For that reason, the document cannot suffice as a notice of appeal invoking this Court's jurisdiction. See Verburgt, 959 S.W.2d at 616.
Second, appellant filed, on June 22, 2016, a rule 306a motion in the trial court to show that neither he nor his counsel acquired actual notice of the judgment until November 22, 2015 at the earliest. See TEX. R. CIV. P. 306a(4). However, the record before this Court does not contain an order from the trial court that finds the date when appellant or his counsel first either received notice or acquired actual knowledge that the judgment was signed. See TEX. R. CIV. P. 306a(4), (5); TEX. R. APP. P. 4.2(b), (c). Without a written order, the notice of appeal was due no later than January 27, 2016 or, with an extension motion, February 11, 2016. See TEX. R. APP. P. 4.2(c); 26.1, 26.3.
The notice of appeal filed by appellant on February 15, 2016 was untimely. Accordingly, we dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a).
/Carolyn Wright/
CAROLYN WRIGHT
CHIEF JUSTICE 160160F.P05
JUDGMENT
On Appeal from the 160th Judicial District Court, Dallas County, Texas
Trial Court Cause No. DC-12-01788.
Opinion delivered by Chief Justice Wright. Justices Lang-Miers and Stoddart participating.
In accordance with this Court's opinion of this date, the appeal is DISMISSED.
It is ORDERED that appellees LEONARDO BRAVO AND MARIA BRAVO recover their costs of this appeal from appellant ISRAEL JUAREZ. Judgment entered November 18, 2016.