Opinion
No. 05-10-01577-CV
Opinion Filed April 21, 2011.
On Appeal from the 429th Judicial District court, Collin County, Texas, Trial Court Cause No. 429-02436-2008.
Before Justices MURPHY, FILLMORE, and MYERS.
MEMORANDUM OPINION
Diane Samuels and Phillip Samuels appeal from a judgment entered by the trial court, following a remand from this Court, awarding Landon Perry, M.D. attorney's fees plus post-judgment interest. Because their notice of appeal was not timely filed, we dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a).
Our jurisdiction is fundamental and never presumed. Brashear v. Victoria Gardens of McKinney, L.L.C., 302 S.W.3d 542, 546 (Tex. App.-Dallas 2009, no pet.) (op. on reh'g); K S Interests, Inc. v. Tex. Am. Bank/Dallas, 749 S.W.2d 887, 890 (Tex. App.-Dallas 1988, writ denied). Absent a timely filed notice of appeal from a final judgment or recognized interlocutory order, we do not have jurisdiction over an appeal. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); KS Mart, Inc. v. Proton PRC. Ltd., 328 S.W.3d 659, 659 (Tex. App.-Dallas 2010, no pet.) (citing Tex. R. App. P. 26.1).
Unless a party adversely affected by the judgment does not receive timely notice that a judgment has been rendered, the period for filing the appeal begins to run from the date the judgment is signed. See Tex. R. App. P. 4.2, 26.1. Subject to two exceptions not applicable here, if a party files a post-judgment motion for new trial, to modify, or to reinstate, the notice of appeal is due within ninety days of judgment; otherwise, it is due within thirty days. See id. 26.1. The deadline for filing the notice of appeal may be extended if, within fifteen days after it is due, the party files the notice of appeal and a motion providing a reasonable explanation for the need for the extension. See id. 10.5(b), 26.3.
When a party adversely affected by the judgment does not receive notice within twenty days of judgment, the period for filing the appeal begins to run from the date the party received notice, provided no more than ninety days have elapsed since the signing of the judgment. See Tex. R. App. P. 4.2(a)(1). To benefit from this notice rule, the party seeking relief from the judgment must prove in the trial court, on sworn motion, the date of notice. See Tex. R. App. P. 306a(5); Tex. R. App. P. 4.2. For purposes of appellate jurisdiction, the trial court must sign a written order specifying the date when the party or the party's attorney first learned of the judgment. See Tex. R. App. P. 4.2(c). The judgment here was signed August 27, 2010. The Samuelses filed their notice of appeal December 9, 2010 and an extension motion December 15, 2010. In the extension motion, the Samuelses stated they did not get notice of the judgment until October 12, 2010 and that they had filed a verified motion to extend post-judgment deadlines and modify judgment pursuant to rule 329b. They asserted the deadline for filing the notice of appeal was properly extended by their post-judgment motions to November 25, 2010, but they miscalendared the deadline as December 10, 2010. They sought a fourteen-day extension so that their December 9 notice of appeal could be deemed timely. We granted the extension motion on December 21, 2010 without the benefit of the record. When the record was subsequently filed, we questioned whether the notice of appeal was in fact timely. The post-judgment motions the Samuelses referenced in their motion to extend time to file the notice of appeal recited that neither the Samuelses nor their counsel received notice of the judgment until October 12, 2010. See Tex. R. Civ. P. 306a(4).The Samuelses sought a finding on when notice was received but did not set the motions for hearing or obtain a ruling. See id. 306a(5); Tex. R. App. P. 4.2(c). Because a ruling is necessary for purposes of appellate jurisdiction, we questioned whether the post-judgment motions effectively extended the deadline for filing the notice of appeal.
By letter dated January 24, 2011, we directed the Samuelses to file a letter brief addressing our concern. We directed the Samuelses to file the brief no later than February 4, 2011 and directed appellee Perry to file any response no later than February 11, 2011. To date, the Samuelses have not filed the requested brief or otherwise communicated with the Court.
A timely filed notice of appeal is fundamental to our jurisdiction. Without one, our jurisdiction is not invoked. See Lehman, 39 S.W.3d at 195. Although the Samuelses moved for a finding that they did not receive notice of the judgment until October 12, they failed to set the motion for hearing and obtain a ruling. Without a ruling, the notice of appeal was due no later than September 26, 2010. See Tex. R. App. P. 26.1. The Samuelses' December 9 notice was untimely, and their motion to extend time to file the notice was improvidently granted. Because the notice of appeal was untimely, we vacate our December 21, 2010 order, deny the extension motion, and dismiss the appeal for want of jurisdiction. See id. 42.3(a).