David K. Everson and Patricia M. Everson v. Lonestar Equine Rescue, Robert H. Lenham and Georganne R. Adams Lenham--Appeal from 114th District Court of Smith County

NO. 12-06-00339-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

DAVID K. EVERSON AND

PATRICIA M. EVERSON, APPEAL FROM THE 114TH

APPELLANTS

V. JUDICIAL DISTRICT COURT OF

LONESTAR EQUINE RESCUE, ROBERT

H. LENHAM AND GEORGEANNE SMITH COUNTY, TEXAS

R. ADAMS LENHAM,

APPELLEES

MEMORANDUM OPINION

PER CURIAM

On September 26, 2006, Appellants David K. Everson and Patricia M. Everson filed a notice of appeal stating their desire to appeal from a final judgment signed on April 25, 2006 and/or the judgment nunc pro tunc signed on June 28, 2006. On September 29, 2006, this Court notified the Eversons that their notice of appeal was not filed within the time allowed by Texas Rule of Appellate Procedure 26.1 and that no timely motion for an extension of time to file the notice of appeal had been filed. See Tex. R. App. P. 26.1 (notice of appeal must be filed within thirty days after judgment signed where no timely motion for new trial filed); Tex. R. App. P. 26.3 (appellate court may extend time to file notice of appeal if, within 15 days after deadline for filing notice of appeal, appellant files notice of appeal in trial court and files motion for extension of time in appellate court). The Eversons were further notified that the appeal would be dismissed unless, on or before October 9, 2006, the information received in the appeal was amended to show the jurisdiction of this Court.

On October 6, 2006, the Eversons filed a motion for leave to file an out of time appeal and an amended notice of appeal. In their motion for leave, the Eversons stated that they did not receive notice of the signed judgment and that the trial court signed a judgment nunc pro tunc on June 28, 2006 after the expiration of the court s plenary power. They further alleged that, on July 21, 2006, they filed a motion to extend time and a motion for new trial in the trial court. In response to the information furnished by the Eversons, we issued an order requiring the trial court to conduct a hearing and to sign a written order finding when the Eversons or their attorney first either received notice or acquired actual knowledge that the judgment was signed. See Tex. R. App. P. 4.2(c). The trial court promptly conducted the hearing and signed a written order finding that on June 5, 2006, the Eversons attorney received notice that the judgment was signed.

Because the Eversons attorney did not receive notice of the signed judgment until June 5, 2006, all appellate time periods that begin on the date the judgment was signed run from that date. See Tex. R. App. P. 4.2(a)(1). Although the Eversons filed a motion for new trial, the motion was filed on July 21, 2006, which was more than thirty days after the date the Eversons received notice of the signed judgment. Therefore, the motion for new trial was untimely and did not extend the time for filing the notice of appeal. See Tex. R. Civ. P. 329b(a) (motion for new trial must be filed within thirty days after judgment signed); see also Tex. R. App. P. 26.1(a)(1) (notice of appeal must be filed within ninety days after judgment signed if any party timely files motion for new trial). Moreover, a nunc pro tunc judgment entered after a trial court s plenary jurisdiction has expired does not extend the time for perfecting an appeal. Hollis v. County of Dallas, No. 05-05-01306-CV, 2006 WL 10095, at *1 (Tex. App. Dallas 2006, no pet.) (mem. op.). Consequently, the Eversons notice of appeal must have been filed on or before July 5, 2006. However, the notice of appeal was not filed until September 26, 2006. As such, the notice of appeal was untimely and does not invoke the jurisdiction of this Court.1

Because this Court is not authorized to extend the time for perfecting an appeal except as provided by Texas Rules of Appellate Procedure 26.1 and 26.3, we dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a).

Opinion delivered November 15, 2006.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)

1 Even if we calculated the appeal late time periods from the date the judgment nunc pro tunc was signed, the notice of appeal would still be untimely.