Opinion
NO. 03-17-00623-CV
01-12-2018
Thomas McDill, Appellant v. Michael McDill, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. D-1-GN-16-005931 , HONORABLE KARIN CRUMP, JUDGE PRESIDING MEMORANDUM OPINION
Appellant Thomas McDill seeks to appeal an "order to enforce temporary order appointing emergency guardian," signed on December 7, 2016. Generally, under the Texas Rules of Appellate Procedure, an appeal is perfected in a civil case when a notice of appeal is filed within thirty days after the judgment is signed. Tex. R. App. P. 26.1. Appeals from interlocutory orders are accelerated, see Tex. R. App. P. 28.1, and notice of appeal must filed within twenty days after the judgment or order is signed, Tex. R. App. P. 26.1(b). Consequently, to the extent the December 7 order operates as final judgment in this case, appellant's deadline to file his notice of appeal was January 6, 2017. To the extent the December 7 order is not a final judgment but is an otherwise appealable, interlocutory order, appellant's deadline to file his notice of appeal was December 27, 2016. Appellant did not file his notice of appeal until September 21, 2017.
When a motion for new trial or other post-judgment motion under Rule 26.1(a) is timely filed, a notice of appeal from a final judgment must be filed within ninety days after the judgment is signed. Tex. R. App. P. 26.1(a). On June 12, 2017, appellant filed a motion asking the trial court to reconsider its December 7 order. Even if appellant's motion to reconsider were considered timely, see Tex. R. Civ. P. 239(a) (any motion for new trial or motion to modify, correct or reform judgment must be filed within 30 days after judgment is signed), appellant's notice of appeal would have been due March 7, 2017. The denial of a post-judgment motion to reconsider is not in itself an appealable judgment or order for purposes of calculating appellate deadlines. See Tex. R. App. P. 26.1.
On December 14, 2017, we sent a letter to appellant, stating that it appeared from the trial court clerk's record that his notice of appeal was not timely filed and, as a result, that we lacked jurisdiction over this appeal. See Tex. R. App. P. 25.1(b) (filing of notice of appeal invokes appellate jurisdiction). To date, appellant has not responded to our jurisdictional inquiry. Because appellant's notice of appeal is untimely, this Court lacks jurisdiction to consider this appeal. Accordingly, we dismiss the cause for want of jurisdiction. See Tex. R. App. P. 42.3.
/s/_________
Scott K. Field, Justice Before Chief Justice Rose, Justices Goodwin and Field Dismissed for Want of Jurisdiction Filed: January 12, 2018