Capitol State Mortgage Corp., and Frank Jeffreys v. Michael Izard & Tracy Izard--Appeal from 9th District Court of Waller County

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Dismissed and Memorandum Opinion filed April 21, 2005

Dismissed and Memorandum Opinion filed April 21, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-05-00263-CV

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CAPITOL STATE MORTGAGE CORP, and FRANK JEFFREYS, Appellants

V.

MICHAEL IZARD and TRACY IZARD, Appellees

On Appeal from the 9th District Court

Waller County, Texas

Trial Court Cause No. 00-05-15397

M E M O R A N D U M O P I N I O N

This is an appeal from a judgment signed November 15, 2004. No clerk=s record has been filed. The clerk responsible for preparing the record in this appeal informed the court appellants did not make arrangements to pay for the record.

On March 22, 2005, notification was transmitted to all parties of the Court's intent to dismiss the appeal for want of prosecution unless, within fifteen days, appellants paid or made arrangements to pay for the record and provided this court with proof of payment. See Tex. R. App. P. 37.3(b).


On March 31, 2005, appellees filed a motion to dismiss the appeal for lack of jurisdiction, asserting that the notice of appeal was filed one day late. Appellees also requested sanctions for a frivolous appeal. Appellants filed a response to appellees= motion and a request for sanctions, claiming that the notice of appeal was timely because it was filed within three days of the overruling of the motion for new trial.[1] On April 13, 2005, appellees filed a reply to appellants= response.

Absent a clerk=s record, the court is unable to determine whether the notice of appeal was timely filed or if sanctions are appropriate. Accordingly, we deny appellants= and appellees= requests for sanctions. Because the appeal is being dismissed for failure to make arrangements for the filing of a clerk=s record, we deny appellees= motion to dismiss for lack of jurisdiction as moot.

The appeal is ordered dismissed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed April 21, 2005.

Panel consists of Justices Yates, Anderson, and Hudson.


[1] Appellants misunderstand the rules of perfection. The deadline for filing a notice of appeal is not based on the date the motion for new trial is overruled. Rather, a notice of appeal is to be filed either 30 days from the date judgment is signed, or if a timely motion for new trial is filed, the notice of appeal is due 90 days from the date the judgment is signed. See Tex. R. App. P. 26.1.

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