in the Interest of S.A.W., a Child ( 2015 )

DISMISS and Opinion Filed November 25, 2015.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-15-00876-CV
IN THE INTEREST OF S.A.W., A CHILD
On Appeal from the 302nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-14-14410
MEMORANDUM OPINION
Before Chief Justice Wright and Justices Lang and Brown
Opinion by Justice Lang
This Court questioned its jurisdiction over this appeal because it appeared the notice of
appeal was untimely. We instructed appellant to file a letter brief addressing our jurisdictional
concern and gave appellee an opportunity to respond.
The trial court’s initial order on bill of review was incorrectly dated March 22, 2015. On
June 16, 2015, appellant filed a motion for judgment nunc pro tunc to correct the date signed to
May 22, 2015, the actual date the judgment was signed. On July 10, 2015, the trial court signed
a nunc pro tunc order on bill of review. In the nunc pro tunc order, the trial court stated that the
effective date of the order is May 22, 2015. Appellant filed his notice of appeal on July 16,
2015.
In the absence of a timely filed post-judgment motion extending the appellate timetable, a
notice of appeal is due thirty days after the date the judgment is signed. See TEX. R. APP. P. 26.1.
However, only a motion seeking a substantive change will extend the appellate deadlines and the
trial court’s plenary power under rule of civil procedure 329b(g). See Lane Bank Equip. Co. v.
Smith S. Equip., Inc., 10 S.W.3d 308, 313 (Tex. 2000), citing Cavalier Corp. v. Store Enter.,
Inc., 742 S.W.2d 785, 786 (Tex. App.—Dallas 1987, writ denied); TEX. R. CIV. P. 329b(g).
Thus, a motion for judgment nunc pro tunc does not extend the time to perfect an appeal. See
Cavalier Corp., 742 S.W.2d at 787. Without a timely notice of appeal, this Court lacks
jurisdiction. See TEX. R. APP. P. 25.1(b).
In his jurisdictional brief, appellant cites to rule of civil procedure 306a(6) as support for
his contention that the appellate timetable began on July 10, 2015, the date the nunc pro tunc
order was signed. Rule 306a(6) provides that when a corrected judgment is signed after
expiration of the trial court’s plenary power pursuant to rule of civil procedure 316, the period
for filing a post-judgment motion “shall run from the date of signing the corrected judgment with
regard to any complaint that would not be applicable to the original document.” See TEX. R. CIV.
P. 306a(6). This rule is inapplicable to this case because both the original order and the order
nunc pro tunc are identical, aside from the correction of the date in the order nunc pro tunc as
requested by appellant. Thus, there is no complaint appellant could raise that would not also be
applicable to original order. The nunc pro tunc order signed on July 10, 2015 corrected the date
the judgment was signed to May 22, 2015. The appellate timetable began on May 22, 2015. See
Cavalier Corp., 742 S.W.2d at 787. Accordingly, appellant’s notice of appeal was due on
Monday, June 22, 2015. See TEX. R. APP. P. 26.1, 4.1(a). Appellant filed his notice of appeal on
July 16, 2015. Because appellant failed to timely file a notice of appeal, we dismiss the appeal
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for want of jurisdiction. TEX. R. APP. P. 42.3(a).
/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE
150876F.P05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF S.A.W., A CHILD On Appeal from the 302nd Judicial District
Court, Dallas County, Texas.
No. 05-15-00876-CV Trial Court Cause No. DF-14-14410.
Opinion delivered by Justice Lang.
Chief Justice Wright and Justice Brown
participating.
In accordance with this Court’s opinion of this date, the appeal is DISMISSED.
It is ORDERED that appellee Shelly White recover her costs of this appeal from
appellant Roland Jones, Jr.
Judgment entered this 25th day of November, 2015.
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