Opinion
No. 05-08-01123-CV
Opinion Filed June 17, 2010.
On Appeal from the County Court at Law No. 4, Dallas County, Texas, Trial Court Cause No. CC08-01140D.
Before Justices RICHTER, LANG-MIERS, and MURPHY.
MEMORANDUM OPINION
This is an attempted appeal from the trial court's order granting summary judgment in favor of USA Today Newpaper, USA Today Internet Article Division, USA Today journalist Kevin McCoy, and USA Today journalist Paul Overberg (collectively, USA Today). Pro se appellant Kenneth McClain timely filed a notice of appeal on May 1, 2008, with the trial court only. He failed to serve a copy of the notice of appeal on the other parties to the trial court's judgment, and failed to file a copy with the appellate court clerk, as required by the rules of appellate procedure. See Tex. R. App. P. 9.5, 25.1(e).
Twelve days later, on May 12, 2008, McClain filed a motion to strike his notice of appeal, a motion to vacate judgment, and a motion for findings of fact and conclusions of law. In his motion to strike notice of appeal, McClain stated, "[i]n anticipation of filing my motion to vacate judgment and motion for finding of fact and conclusions of law, and motion to strike notice of appeal, I did not serve defendants yet under T.R.A.P. 25.1(e). I will re-file my notice of appeal within 90 days after my motion to vacate judgment is filed." McClain did not intend for his May 1, 2008 notice of appeal to invoke the jurisdiction of this Court. McClain acknowledged he deliberately and intentionally failed to comply with the rules of appellate procedure by not serving a copy of the May 1, 2008 notice of appeal on all parties to the judgment.
Furthermore, the May 1, 2008 notice of appeal was defective. See Tex. R. App. P. 9.5, 25.1(e). Rule 37.1 of the rules of appellate procedure requires an appellate clerk to notify the parties of a defect in a notice of appeal so it can be remedied. See Tex. R. App. P. 37.1; see Feist v. Berg, No. 12-03-00442-CV, 2004 WL 252785, at *1 (Tex. App.-Tyler Feb. 11, 2004, pet. denied) (mem. op.). However, in this case, the appellate clerk did not have the opportunity to notify McClain of the defect in his notice of appeal because a copy of the notice was not filed with the appellate court clerk. Additionally, it is clear from McClain's motion to strike the notice of appeal that he was aware of the defect in his notice of appeal, had an opportunity to remedy the defect, and deliberately elected not to do so. It is also clear from his motion to strike appeal that McClain did not intend his May 1st notice of appeal to be a bona fide attempt to invoke the appellate court's jurisdiction. See Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997).
Absent a filing that extends the deadline, a party has thirty days from the judgment is signed to file a notice of appeal. Tex. R. App. P. 26.1. If a party timely files a motion to modify the judgment, notice of appeal must be filed within ninety days after the judgment is signed. Tex. R. App. P. 26.1(a)(2). McClain's motion to vacate judgment had the same effect as a motion to modify the judgment and was sufficient to extend the time within which to perfect an appeal. See Ramirez v. Williams Bros. Constr. Co., Inc., 870 S.W.2d 551, 552 (Tex. App.-Houston [1st Dist.] 1993, no pet.) (any post-judgment motion which, if granted, results in a substantive change in the original judgment extends the time for perfecting an appeal). Accordingly, McClain's notice of appeal was due by July 14, 2008.
McClain filed his second notice of appeal on August 7, 2008. Again, McClain filed his notice with the trial court only. There is nothing in the record to indicate McClain served a copy of the second notice of appeal on the other parties to the trial court's judgment. He did not file a request for an extension of time within which to file his notice of appeal. Because the August 7, 2008 notice of appeal appeared to be untimely as to the April 14, 2008 judgment and May 12, 2008 motion to vacate, we directed the parties to file letter briefs addressing our jurisdiction over the appeal.
In his letter brief, McClain argued that his May 1, 2008 notice of appeal was valid, timely, and sufficient to perfect his appeal. McClain also argued that his August 7, 2008 notice of appeal was timely filed because the motions he filed extended his deadline for filing by ninety days. The record reflects McClain mistakenly believed he had ninety days from the date on which he filed his motion to vacate judgment to perfect his appeal, instead of ninety days from the date the judgment was signed. See Tex. R. App. P. 26.1(a)(2); see also Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex. 1995) ("The Rules of Appellate Procedure calculate the period within which one must perfect an appeal from the time the judgment is signed, not from the filing of a pleading.") (emphasis in original).
The rules of appellate procedure provide for additional time within which to file a notice of appeal. See Tex. R. App. P. 26.3. However, McClain cannot obtain the benefit of rule 26.3 because he did not file his notice of appeal within fifteen days of the deadline for filing the notice of appeal. Id.; see also Verburgt, 959 S.W.2d at 617 (holding motion for extension is implied if perfecting instrument is filed within fifteen days of its due date). A notice of appeal filed outside the fifteen-day period provided by rule 26.3 will not invoke the appellate court's jurisdiction. Id.; see also Owusu v. Citibank (South Dakota), N.A., No. 05-09-00834-CV, 2009 WL 3003187, at *1 (Tex.App.-Dallas Sept. 22, 2009, no pet.) (mem. op.).
Although we construe pro se pleadings and briefs liberally, we hold pro se litigants to the same standards as licensed attorneys and require them to comply with applicable laws and rules of procedure. Peña v. McDowell, 201 S.W.3d 665, 667 (Tex. 2006); Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978); Drum v. Calhoun, 299 S.W.3d 360, 364 (Tex. App.-Dallas 2009, pet. denied). To do otherwise would give a pro se litigant an unfair advantage over a litigant who is represented by counsel. Cooper v. Circle Ten Council Boy Scouts of Am., 254 S.W.3d 689, 693 (Tex. App.-Dallas 2008, no pet.).
The timely filing of a notice of appeal is jurisdictional. Tex. R. App. P. 25.1(b); see Owusu, 2009 WL 3003187, at *1. Because McClain's first notice of appeal was defective and his second notice of appeal was untimely, we do not have jurisdiction over this appeal. We dismiss this appeal for want of jurisdiction.