Mark Tippets Lockhart v. Amy Carol Lockhart--Appeal from 106th District Court of Gaines County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

MARK TIPPETS LOCKHART, )

) No. 08-03-00281-CV

Appellant, )

) Appeal from the

v. )

) 106th District Court

AMY CAROL LOCKHART, )

) of Gaines County, Texas

Appellee. )

) (TC# 98-04-13597)

)

MEMORANDUM OPINION

Pending before the Court is Appellee=s motion to dismiss this appeal for want of jurisdiction. Such dismissal is appropriate under Tex.R.App.P. 42.3. This rule states:

Under the following circumstances, on any party=s motion--or on its own initiative after giving ten days= notice to all parties--the appellate court may dismiss the appeal or affirm the appealed judgment or order. Dismissal or affirmance may occur if the appeal is subject to dismissal:

(a) for want of jurisdiction;

(b) for want of prosecution; or

(c) because the appellant has failed to comply with a requirement of these rules, a court order, or a notice from the clerk requiring a response or other action within a specified time.

Tex.R.App.P. 42.3.

The trial court signed the order at issue on March 12, 2003. A motion for new trial must be filed within thirty days after the judgment or other order complained of is signed. Tex.R.Civ.P. 329b(a). In this instance, the motion for new trial was required to be filed no later than April 11, 2003. The limited record before us indicates Appellant=s motion for new trial was mailed on April 14, 2003, and filed with the district clerk on April 17, 2003. Appellant argues that because the trial court=s order was served by mail, he is allowed an additional three days to file a motion for new trial under Tex.R.Civ.P. 21a. Therefore, he contends the motion for new trial was timely filed on April 14, 2003.

Texas Rules of Civil Procedure 21 and 21a relate to pleadings and motions filed by parties with the trial court. See Tex.R.Civ.P. 21, 21a. These rules govern the general content and specific procedures to be followed by a party when filing a motion with the court. Id. Rule 21a specifically addresses methods of service to other parties. Tex.R.Civ.P. 21a. We find nothing in the language of the rule to indicate it applies to orders or judgments of a trial court. Rather, the rule clearly sets forth instructions for service of notice between parties. Id. Appellant=s contention that Rule 21a acts to extend the amount of time one has to file a motion for new trial merely because a court order is mailed to a party is erroneous. Under Texas law, the appellate timetable runs from the signing date of the trial court=s order. Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex. 1995).

Absent a timely filed motion for new trial, the notice of appeal was also required to be filed within thirty days after the judgment is signed. Tex.R.App.P. 26.1. Appellant filed an untimely notice of appeal on June 5, 2003. Because Appellant has failed to file a timely motion for new trial and a timely notice of appeal, we have no jurisdiction over this appeal. Appellee=s motion to dismiss is granted. Accordingly, we now dismiss this appeal under Tex.R.App.P. 42.3(a).

July 29, 2003

DAVID WELLINGTON CHEW, Justice

Before Panel No. 3

Barajas, C.J., Larsen, and Chew, JJ.