Summary
concluding that motion to set aside judgment is not independently appealable and implicitly characterizing as motion for new trial
Summary of this case from Weisinger v. StateOpinion
No. 06-12-00038-CV
04-06-2012
DERRON MACKLIN, Appellant v. SAIA MOTOR FREIGHT LINES, INC., Appellee
On Appeal from the 276th Judicial District Court
Marion County, Texas
Trial Court No. 09-00015A
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Appellant, Derron Macklin, filed a notice of appeal from the trial court's order denying Macklin's motion to set aside judgment in cause number 09-00015-A. This portion of his suit had been severed from other proceedings involving him by order dated July 29, 2011, and the trial court had previously granted a no-evidence summary judgment on the matter March 1, 2011. Macklin filed a motion to set aside the judgment, which was denied December 16, 2011. Macklin filed a notice of appeal December 27, 2011. He appears to believe that his appeal is timely and may proceed because it was filed within thirty days of the denial of his motion to set aside the judgment.
However, the trial court's order denying his motion to set aside is not the final, appealable judgment in this case. We have jurisdiction to hear an appeal from a final judgment or from interlocutory orders as expressly authorized by statute. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 51.012, 51.014 (West Supp. 2011). An order denying a motion for reconsideration or motion for new trial is not a judgment, and is not independently appealable. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014; State Office of Risk Mgmt. v. Berdan, 335 S.W.3d 421, 428 (Tex. App.—Corpus Christi 2011, pet. filed). Any appeal was required to be taken from the judgment, not from the refusal to reconsider the judgment. Because it did not become final until it was severed from the other proceeding, the timetables are calculated from the date of severance, July 29, 2011. See Baker v. Monsanto Co., 111 S.W.3d 158, 159 (Tex. 2003) (per curiam). Any notice of appeal would have been due within ninety days of that date, no later than October 27, 2011. TEX. R. APP. P. 26.1.
The notice of appeal was filed sixty days too late. In the absence of timely filed documents showing a bona fide intent to appeal, which typically is evidenced by the filing of a notice of appeal, the jurisdiction of this Court is not invoked, and we may not consider the attempted appeal. See Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997).
In accordance with TEX. R. APP. P. 42.3, we provided notice to Macklin, requesting that he show this Court how we had jurisdiction over this appeal. We have received Macklin's affidavit in response and considered it. We do not find it to be persuasive.
We dismiss this appeal for want of jurisdiction.
Bailey C. Moseley
Justice