William H. Lile v. Enflite, Inc.--Appeal from 201st District Court of Travis County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-02-00773-CV

William H. Lile, Appellant

v.

Enflite, Inc., Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT

NO. GN003101, HONORABLE PAUL DAVIS, JUDGE PRESIDING

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

Appellant William H. Lile seeks to appeal the district court's judgment for contempt and an order assessing sanctions. Appellee Enflite, Inc. moves to dismiss the appeal for want of jurisdiction and requests damages. See Tex. R. App. P. 45. We grant Enflite's motion to dismiss and dismiss the appeal and the request for damages.

The district court found Lile, along with co-defendants Aviation Mechanisms, Inc., Michael G. Deel, and Daman K. Farrar, in contempt of court for violating an agreed permanent injunction. Lile and his co-defendants were found individually liable in the amount of $500 for each of 401 violations. The district court also granted a motion for sanctions filed by Enflite and assessed sanctions against the defendants, jointly and severally, for abuse of discovery. Both the contempt judgment and the sanctions order were rendered on May 7, 2002. Neither Lile nor any of his co-defendants timely filed a motion for new trial.

On October 8, 2002, Lile filed with the district court a motion for reconsideration of the contempt judgment and sanctions order. The court denied the motion for want of jurisdiction on November 19. On December 13, Lile filed with this Court a notice of appeal.

A notice of appeal must be filed within thirty days after a judgment is signed, or within ninety days if the party timely files a motion for new trial or to modify judgment. Tex. R. App. P. 26.1. A timely filed motion for new trial or motion to modify judgment is one filed within thirty days after the judgment is signed. Tex. R. Civ. P. 329b(a). Here, Lile filed his motion for reconsideration more than thirty days after the judgment was signed. Thus, he failed to extend the time to file his notice of appeal. His notice of appeal was therefore due thirty days after the judgment was signed. Because Lile did not file his notice of appeal until more than thirty days after the judgment was signed, his notice of appeal was untimely. The time period for filing a perfecting instrument is jurisdictional. Velasquez v. Harrison, 934 S.W.2d 767, 770 (Tex. App.--Houston [1st Dist.] 1996, no writ). When an appellant fails to file timely a perfecting instrument or properly seek an extension of time to file a perfecting instrument, the appellate court must dismiss the cause for lack of jurisdiction. Id.

Because appellant's notice of appeal was not timely filed, this Court is without jurisdiction over the appeal. Accordingly, we grant Enflite's motion to dismiss and dismiss this appeal for want of jurisdiction and the motion for damages for frivolous appeal. See Tex. R. App. P. 42.3(a).

Bea Ann Smith, Justice

Before Chief Justice Law, Justices B. A. Smith and Puryear

Dismissed for Want of Jurisdiction on Appellee's Motion

Filed: January 16, 2003