Realty World Vital Properties, LLC v. RBMW, Inc.--Appeal from 7th District Court of Smith County

MARY'S OPINION HEADING

NO. 12-08-00139-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

REALTY WORLD VITAL

PROPERTIES, LLC, APPEAL FROM THE 7TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

RBMW, INC., SMITH COUNTY, TEXAS

APPELLEE

 

MEMORANDUM OPINION

This appeal is being dismissed for want of jurisdiction pursuant to Texas Rule of Appellate Procedure 42.3(a). The trial court s judgment was signed on December 18, 2007. Under rule of appellate procedure 26.1(a), unless Appellant timely filed a motion for new trial or other postjudgment motion that extended the appellate deadlines, its notice of appeal was due to have been filed within 30 days after the judgment [was] signed, i.e., January 17, 2008.

Appellant s motion for new trial was due to have been filed on or before January 17, 2008. See Tex. R. Civ. P. 329b(a) (motion for new trial must be filed prior to or within thirty days after judgment signed). However, Appellant did not file its motion for new trial until March 17, 2008. Therefore, Appellant s motion for new trial was untimely and did not extend the deadline for filing the notice of appeal. See 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 a motion for new trial). Appellant filed its notice of appeal on March 27, 2008, but had not filed a motion for extension of time to file the notice of appeal as permitted by Texas Rule of Appellate Procedure 26.3. Because the notice of appeal was not filed on or before January 17, 2008, the notice was untimely and this court has no jurisdiction to consider the appeal.

 

On April 2, 2008, this court notified Appellant pursuant to Texas Rule of Appellate Procedure 42.3(a) that its notice of appeal was untimely. Appellant was further informed that unless the record was amended on or before April 14, 2008 to establish the jurisdiction of this court, the appeal would be dismissed. In response to this court s April 2, 2008 notice, Appellant provided a copy of its amended motion for new trial, filed on April 8, 2008. In the motion, Appellant alleged that it did not receive notice of the December 18, 2007 judgment within twenty days after it was signed. Moreover, pursuant to Texas Rule of Appellate Procedure 4.2, Appellant requested the trial court, after notice and hearing, to make findings concerning the date Appellant either received notice or acquired actual knowledge that the judgment had been signed.

On April 22, 2008, this court notified Appellant that the appeal would be dismissed unless, on or before May 2, 2008, Appellant provided a file marked copy of the trial court s order establishing the date Appellant received notice or acquired actual knowledge that the December 18, 2007 judgment had been signed. On April 25, 2008, the trial court signed an order denying Appellant s request to establish such a date because its request did not comply with the applicable rules of procedure.

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, and because Appellant has not complied with Texas Rule of Appellate Procedure 4.2, the appeal is dismissed for want of jurisdiction. See Tex. R. App. P. 42.3(a).

Opinion delivered April 30, 2008.

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

(PUBLISH)