Michael Thomas Emmott v. John Boudreaux ( 2013 )

Opinion issued January 10, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00951-CV
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MICHAEL THOMAS EMMOTT, Appellant
V.
JOHN BOUDREAUX, Appellee
On Appeal from the 151st District Court
Harris County, Texas
Trial Court Cause No. 2011-26258
MEMORANDUM OPINION
Appellant, Michael Thomas Emmott, attempts to appeal from the trial
court’s final summary judgment signed May 22, 2012 in favor of appellee,
John Boudreaux. Appellee moves to dismiss this appeal for lack of jurisdiction
because the notice of appeal in the trial court was filed past the deadline.
Because appellant’s notice of appeal was not timely filed, we grant appellee’s
motion and dismiss the appeal.
Generally, to confer jurisdiction in the appellate courts, a notice of
appeal must be filed within 30 days after the date the judgment is signed. See TEX.
R. APP. P. 26.1. The deadline to file a notice of appeal is extended to 90 days after
the date the judgment is signed if any party timely files a motion for new trial,
motion to modify the judgment, motion to reinstate, or, under certain
circumstances, a request for findings of fact and conclusions of law. See TEX. R.
APP. P. 26.1(a). A motion for new trial, if any, must be filed within 30 days after
the date the judgment is signed. See TEX. R. APP. P. 329b(a).
The clerk’s record reflects that the trial court signed the final judgment on
May 22, 2012. A motion for new trial, if any, was due by June 21, 2012. See id.
The record shows, however, that appellant did not file a motion for new trial until
18 days later, on July 9, 2012. Because appellant’s motion for new trial was not
timely filed, it did not extend the deadline for appellant to file his notice of appeal.
See TEX. R. APP. P. 26.1(a)(1). Appellant’s notice of appeal remained due by June
21, 2012. See TEX. R. APP. P. 26.1. Appellant did not file a notice of appeal until
106 days later, on October 5, 2012. Therefore, we lack jurisdiction to hear the
appeal. See TEX. R. APP. P. 25.1.
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In his response to the appellee’s motion to dismiss the appeal, appellant
asserts that he filed a motion for new trial on June 20, 2012, which was before the
expiration of the deadline to file a motion for new trial.1 See TEX. R. APP. P.
329b(a). If appellant timely filed a motion for new trial, the deadline to file his
notice of appeal was extended to August 20, 2012. See TEX. R. APP. P.
26.1(a)(1). The record reflects, however, that appellant did not file his notice of
appeal until 46 days later, on October 5, 2012. Even if we conclude that appellant
timely filed a motion for new trial, appellant’s notice of appeal was not timely
filed and therefore we lack jurisdiction to hear the appeal. See TEX. R. APP. P.
25.1, 26.1.
Finally, appellant’s notice of appeal states that he appeals from “the trial
court’s judgment rendered on 07/23/2012.” The record reflects that, on July 23,
2012, the trial court signed an order dismissing appellant’s motion for new trial for
lack of jurisdiction because the motion was untimely filed. To the degree that
appellant seeks to appeal from the trial court’s order on his motion for new trial,
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Appellant appended to his response a copy of a motion for new trial that bears the
district clerk’s file-stamp, dated June 25, 2012, and reflects that the motion was
mailed. The trial court’s July 23, 2012 order states that it is possible that the
district clerk mistakenly returned the motion to appellant “as a ‘duplicate.’” We
need not resolve this issue because, even if we conclude that appellant timely filed
his motion for new trial, his notice of appeal was filed beyond the deadline to
confer jurisdiction on the appellate court.
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such an order is not independently appealable. See State Office of Risk Mgmt. v.
Berdan, 335 S.W.3d 421, 428 (Tex. App.—Corpus Christi 2011, pet. denied).
Because appellant’s notice of appeal was untimely filed, we lack
jurisdiction to hear this appeal. See TEX. R. APP. P. 25.1. Accordingly, we grant
the appellee’s motion to dismiss the appeal. See TEX. R. APP. P. 43.2(f). We
dismiss all other pending motions as moot.
PER CURIAM
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
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