Gregory D. Holman, D/B/A DNA Auto Trucking v. Hibbs-Hallmark & Company ( 2019 )

NO. 12-19-00370-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
GREGORY D. HOLMAN, D/B/A DNA § APPEAL FROM THE
AUTO TRUCKING,
APPELLANT
§ COUNTY COURT AT LAW NO. 2
V.
HIBBS-HALLMARK & COMPANY, § SMITH COUNTY, TEXAS
APPELLEE
MEMORANDUM OPINION
PER CURIAM
On November 7, 2019, Gregory D. Holman, d/b/a DNA Auto Trucking, filed a notice of
appeal from a judgment dated October 7, 2019.
Under the rules of appellate procedure, the notice of appeal must be filed (1) within thirty
days after the judgment is signed absent a timely filed post judgment motion, or (2) within ninety
days after the judgment is signed if a party timely files a motion for new trial, motion to modify
the judgment, motion to reinstate under Rule 165a, or request for findings of fact and conclusions
of law that are either required by the rules or, if not required, could be properly considered by the
appellate court. See TEX. R. APP. P. 26.1(a). The record does not indicate that Appellant filed a
motion for new trial, motion to modify, motion to reinstate, or request for findings of fact and
conclusions of law. See TEX. R. APP. P. 26.1(a). Thus, Appellant’s notice of appeal was due on
or before November 6. Appellant filed his notice of appeal on November 7, making it untimely.
Rule 26.3 provides that a motion to extend the time for filing a notice of appeal must be
filed within fifteen days after the deadline for filing the notice of appeal. TEX. R. APP. P. 26.3. On
November 8, this Court notified Appellant that the information received in this appeal does not
show the jurisdiction of this Court, i.e., there is no timely notice of appeal. See TEX. R. APP. P.
26.1, 37.1. However, Appellant was further notified that, pursuant to Rule 26.3 and Verburgt v.
Dorner, 959 S.W.2d 615 (Tex. 1997), we would imply a motion to extend time for filing the notice
of appeal. We informed Appellant that Rule 26.3 requires a motion complying with Rule 10.5(b).
See TEX. R. APP. P. 10.5(b), 26.3(b). Thus, we notified Appellant that the appeal would be
dismissed for want of jurisdiction unless on or before November 21, 2019, Appellant informed
this Court, in writing, of facts that reasonably explained his need for an extension of time to file
the notice of appeal. See TEX. R. APP. P. 42.3. The deadline for responding to this Court’s notice
has expired, and Appellant has not responded to the notice.
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, the appeal is dismissed for want
of jurisdiction. See TEX. R. APP. P. 42.3(a).
Opinion delivered December 4, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(PUBLISH)
2
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
DECEMBER 4, 2019
NO. 12-19-00370-CV
GREGORY D. HOLMAN, D/B/A DNA AUTO TRUCKING,
Appellant
V.
HIBBS-HALLMARK & COMPANY,
Appellee
Appeal from the County Court at Law No. 2
of Smith County, Texas (Tr.Ct.No. 70223-A)
THIS CAUSE came on to be heard on the appellate record, and the same being
considered, it is the opinion of this Court that it is without jurisdiction of the appeal, and that the
appeal should be dismissed.
It is therefore ORDERED, ADJUDGED and DECREED by this Court that this
appeal be, and the same is, hereby dismissed for want of jurisdiction; and that this decision be
certified to the court below for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.