Larry Howard v. Dale Van Es and Jacobien Nynke Van Es ( 2009 )

IN THE
TENTH COURT OF APPEALS
No. 10-09-00020-CV
LARRY HOWARD,
Appellant
v.
DALE VAN ES AND JACOBIEN NYNKE VAN ES,
Appellees
From the 66th District Court
Hill County, Texas
Trial Court No. 45179
MEMORANDUM OPINION
Larry Howard attempts to appeal an adverse judgment rendered on November
7, 2008. Howard’s notice of appeal was due to be filed with the trial court by December
8, 2008. TEX. R. APP. P. 26.1. It was not filed with the trial court until January 20, 2009.1
The Clerk of this Court notified Howard by letter that his case was subject to
dismissal because it appeared that the notice of appeal was untimely filed. In the same
letter, the Clerk warned Howard that the Court would dismiss the appeal unless, within
1 The record reflects that Howard did not file a motion for new trial/rehearing which could have
extended the time period within which to file his notice of appeal. See TEX. R. APP. P. 26.1(a). Instead,
Howard filed a motion for extension of time to file a motion for rehearing. The trial court denied the
motion because it was not filed within 30 days from the date of the judgment.
21 days from the date of the letter, a response was filed showing grounds for continuing
the appeal.
A response from Howard has been received by the Court. However, the
response did not present any argument that demonstrates we have jurisdiction of this
appeal.
Accordingly, this appeal is dismissed. TEX. R. APP. P. 42.3; 44.3.
The motion to dismiss filed by the Honorable John R. MacLean is dismissed as
moot.
Absent a specific exemption, the Clerk of the Court must collect filing fees at the
time a document is presented for filing. TEX. R. APP. P. 12.1(b); Appendix to TEX. R. APP.
P., Order Regarding Fees (Amended Aug. 28, 2007, eff. Sept. 1, 2007). See also TEX. R.
APP. P. 5; 10TH TEX. APP. (WACO) LOC. R. 5; TEX. GOV’T CODE ANN. § 51.207(b); §
51.941(a) (Vernon 2005); and § 51.208 (Vernon Supp. 2008). Under these circumstances,
we suspend the rule and order the Clerk to write off all unpaid filing fees in this case.
TEX. R. APP. P. 2.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Appeal dismissed
Motion dismissed as moot
Opinion delivered and filed April 22, 2009
[CV06]
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