Gavin Saldivar v. D. Evette Saldivar ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00359-CV
GAVIN SALDIVAR APPELLANT
V.
D. EVETTE SALDIVAR APPELLEE
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FROM THE 271ST DISTRICT COURT OF WISE COUNTY
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MEMORANDUM OPINION1
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Appellant Gavin Saldivar attempts to appeal from the trial court’s judgment
granting the divorce of Appellant and Appellee D. Evette Saldivar. The trial
court’s decree was signed July 12, 2010. The motion for new trial was therefore
due August 11, 2010,2 but it was not filed until August 12, 2010. The notice of
1
See Tex. R. App. P. 47.4.
2
See Tex. R. Civ. P. 329b(a).
appeal was not filed until October 11, 2010.3 On October 15, 2010, because it
appeared that the motion for new trial filed one day after its due date was
untimely,4 and that therefore the notice of appeal was untimely,5 depriving this
court of jurisdiction,6 we notified Appellant in writing of our concern and
requested that he advise us within ten days whether he had mailed his motion for
new trial on or before its due date. We stated in the letter that we would dismiss
the appeal for want of jurisdiction if we determined that the appeal was not timely
perfected. Appellant did not respond.
Accordingly, because his motion for new trial was filed one day late, it did
not extend Appellant’s deadline for filing his notice of appeal.7 His notice of
appeal therefore remained due August 11, 2010,8 but it was not filed until
3
See Tex. R. App. P. 26.1(a)(1) (providing that notice of appeal is generally
due within thirty days after judgment is signed but that a timely filed motion for
new trial extends the filing deadline to within ninety days after the judgment is
signed).
4
See Tex. R. Civ. P. 329b(a).
5
See Tex. R. App. P. 26.1(a)(1).
6
See Tex. R. App. P. 25.1, 26.1 (providing together that appellate court has
jurisdiction over timely filed notice of appeal).
7
See Tex. R. App. P. 26.1(a)(1).
8
See Tex. R. App. P. 26.1.
2
October 11, 2010. Because the notice of appeal was untimely, 9 we dismiss this
appeal for want of jurisdiction.10
PER CURIAM
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DELIVERED: November 18, 2010
9
See id.
10
See Tex. R. App. P. 42.3(a), 43.2(f).
3