Rickey Wayne Tolbert v. George A. Otstott ( 2014 )

DISMISS; and Opinion Filed December 1, 2014.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-01317-CV
RICKEY WAYNE TOLBERT, Appellant
V.
GEORGE A. OTSTOTT, Appellee
On Appeal from the County Court at Law No. 1
Kaufman County, Texas
Trial Court Cause No. 89868-CC
MEMORANDUM OPINION
Before Justices FitzGerald, Lang, and Brown
Opinion by Justice Brown
By motion filed September 29, 2014, Rickey Wayne Tolbert, appearing pro se, seeks
leave to appeal the trial court’s July 11, 2014 order granting final summary judgment. The
motion follows the dismissal for want of jurisdiction of an appeal of the same judgment to the
Tenth Court of Appeals in Waco, Texas. See Tolbert v. Otstott, No. 10-14-00240-CV, 2014 WL
4635706 *1 (Tex. App.—Waco Sept. 11, 2014, no pet.) (citing TEX. GOV’T CODE ANN. §§
22.220(a), 22.201(f),(k) (West Supp. 2013)). Because the disposition of Tolbert’s motion for
leave depends on whether a motion for new trial or to modify judgment was timely filed, as
otherwise Tolbert would have needed to file his motion for leave no later than August 26, 2014,
we requested a copy of the trial court’s docket sheet. See TEX. R. APP. P. 4.1, 26.1, 26.3. The
docket sheet we received reflected no motion for new trial or to modify judgment had been filed,
making Tolbert’s motion for leave untimely. See id. 26.1, 26.3.
Pursuant to rule of appellate procedure 42.3, we ordered Tolbert to file a letter brief
addressing the timeliness of the appeal. See id. 42.3(a); Garza v. Hibernia Nat’l Bank, 227
S.W.3d 233, 233 (Tex. App.-–Houston [1st Dist.] 2007, no pet.) (timely filing of notice of appeal
invokes court of appeals’ jurisdiction). Tolbert complied, but his letter presents nothing showing
the appeal is timely. Accordingly, we deny the motion and dismiss the appeal. See TEX. R. APP.
P. 42.3(a); Garza, 227 S.W.3d at 233.
/Ada Brown/
ADA BROWN
JUSTICE
141317F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
RICKEY WAYNE TOLBERT, Appellant On Appeal from the County Court at Law
No. 1, Kaufman County, Texas
No. 05-14-01317-CV V. Trial Court Cause No. 89868-CC.
Opinion delivered by Justice Brown. Justices
GEORGE A. OTSTOTT, Appellee FitzGerald and Lang participating.
In accordance with this Court’s opinion of this date, we DISMISS the appeal.
We ORDER that appellee George A. Otstott recover his costs, if any, of this appeal from
appellant Rickey Wayne Tolbert.
Judgment entered this 1st day of December, 2014.
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