Daniel Franklin v. Crystal Reyes ( 2016 )

Opinion filed October 6, 2016
In The
Eleventh Court of Appeals
__________
No. 11-16-00263-CV
__________
DANIEL FRANKLIN, Appellant
V.
CRYSTAL REYES ET AL., Appellees
On Appeal from the 259th District Court
Jones County, Texas
Trial Court Cause No. 023537
MEMORANDUM OPINION
On September 12, 2016, Daniel Franklin filed in the trial court a notice of
appeal in which he sought to appeal an order of dismissal that was signed by the trial
court on February 26, 2016. When the appeal was docketed in this court, we notified
Appellant by letter that it appeared to this court that the notice of appeal was
untimely filed, and we requested that Appellant respond and show grounds to
continue the appeal.
In his response, Appellant asserts that he did not receive notice of the
dismissal until September 7, 2016, and that he diligently filed his notice of appeal
soon after receiving notice of the dismissal. When a party fails to receive timely
notice of an appealable order, Rule 306a.4 of the Texas Rules of Civil Procedure
extends the time in which a notice of appeal may be filed. However, “in no event
shall such periods begin more than ninety days after the original judgment or other
appealable order was signed.” TEX. R. CIV. P. 306a.4.
The documents on file in this case show that, on February 26, 2016, the trial
court signed a final, appealable order in which it dismissed Appellant’s cause of
action in its entirety. Ninety days from that date was May 26, 2016. Thus, even if
Rule 306a.4 applied, the latest possible due date for Appellant’s notice of appeal was
thirty days after May 26, which would have been June 27, 2016, since June 25 fell
on a Saturday. See TEX. R. APP. P. 4.1(a), 26.1. Appellant did not file his notice of
appeal until September—well after the deadline. Absent a timely notice of appeal,
this court is without jurisdiction to consider this appeal. See Wilkins v. Methodist
Health Care Sys., 160 S.W.3d 559, 564 (Tex. 2005); Garza v. Hibernia Nat’l Bank,
227 S.W.3d 233, 233–34 (Tex. App.—Houston [1st Dist.] 2007, no pet.); see also
Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). Because we are without
jurisdiction, we must dismiss the appeal. See TEX. R. APP. P. 42.3(a).
This appeal is dismissed for want of jurisdiction.
PER CURIAM
October 6, 2016
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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