Cory Stone d/b/a Ultimate Choice Roofing & Remodeling v. Scott Wizeman and Kim Wizeman Appeal from 192nd Judicial District Court of Dallas County (memorandum opinion )
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DISMISS; and Opinion Filed April 27, 2016. S In The Court of Appeals Fifth District of Texas at Dallas No. 05-16-00151-CV CORY STONE D/B/A ULTIMATE CHOICE ROOFING & REMODELING, Appellant V. SCOTT WIZEMAN AND KIM WIZEMAN, Appellees On Appeal from the 192nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-15-08475 MEMORANDUM OPINION Before Justices Lang-Miers, Evans, and Brown Opinion by Justice Brown Asserting the notice of appeal is untimely, appellees have filed a motion to dismiss the appeal. Appellants have not responded, although more than ten days have passed since the filing of the motion. The timely filing of a notice of appeal is jurisdictional. See TEX. R. APP. P. 25.1(b); Garza v. Hibernia Nat’l Bank, 227 S.W.3d 233, 233 (Tex. App.—Houston [1st Dist.] 2007, no pet.). A notice of appeal is timely if filed within thirty days of the signing of the final judgment or, within ninety days of the signing of the final judgment if a motion for new trial, motion to modify judgment, motion to reinstate, or request for findings of fact and conclusions of law is timely filed. See TEX. R. APP. P. 26.1(a). These two deadlines may be extended if the notice of appeal is filed within fifteen days of the due date. See id. 26.3. The judgment here was signed October 30, 2015. Appellant filed a timely motion for new trial, making the notice of appeal due on or before January 28, 2016 or, with an extension motion, February 12, 2016. See id. 26.1, 26.1(a), 26.3. Appellant, however, filed the notice of appeal February 13, 2016, one day late. Accordingly, it is untimely. We grant appellees’ motion and dismiss the appeal for lack of jurisdiction. See id. 42.3(a). /Ada Brown/ ADA BROWN JUSTICE 160151F.P05 –2– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT CORY STONE D/B/A ULTIMATE CHOICE ROOFING & REMODELING, Appellant No. 05-16-00151-CV On Appeal from the 192nd Judicial District Court, Dallas County, Texas Trial Court Cause No. DC-15-08475. Opinion delivered by Justice Brown. Justices Lang-Miers and Evans participating. V. SCOTT WIZEMAN AND KIM WIZEMAN, Appellees In accordance with this Court’s opinion of this date, we DISMISS the appeal. We ORDER appellees Scott Wizeman and Kim Wizeman recover their costs, if any, of this appeal from appellant Cory Stone d/b/a Ultimate Choice Roofing & Remodeling. Judgment entered this 27th day of April, 2016. –3–
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