Dorris Degrate v. Adsun, Inc. ( 2007 )

DISMISSAL FORM FOR CRIMINAL CASES ON ANT'S MOTION/OR WD NOA

                                        NO. 12-07-00400-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

DORRIS DEGRATE AND

FRENCHELL DEGRATE,  §          APPEAL FROM THE 241ST

APPELLANT

V.        §          JUDICIAL DISTRICT COURT OF

ADSUN, INC.,

APPELLEE   §          SMITH COUNTY, TEXAS

MEMORANDUM OPINION

PER CURIAM

            Appellee Adsun, Inc. filed a motion to dismiss this appeal for want of jurisdiction alleging that the notice of appeal was untimely filed.  Appellants Dorris Degrate and Frenchell Degrate, individually and as next friends of Laikia Degrate and Manuel Degrate, minors, filed a response opposing Adsun’s motion.  We dismiss for want of jurisdiction.

            The Degrates filed a products liability suit against Adsun, Executive Imprints, Inc., Swift Transportation Co., Inc., and others.  Adsun, Executive Imprints, and Swift each filed a motion for summary judgment, and the trial court signed orders granting each of the three motions. On March 30, 2007, the trial court signed orders severing the Degrates’ claims against Adsun, Executive Imprints, and Swift into three new cause numbers.  Thus, the summary judgment orders became final and appealable on March 30, 2007.  See Harris County Flood Control Dist. v. Adam, 66 S.W.3d 265, 266 (Tex. 2001) (summary judgment for two defendants became final when severance order was signed).  On April 25, 2007, the Degrates filed a motion for new trial relating to the three summary judgment orders, making their notices of appeal due on June 28, 2007. See Tex. R. App. P. 26.1(a)(1) (notice of appeal must be filed within ninety days after judgment signed if any party timely files a motion for new trial); Martinez v. Humble Sand & Gravel, Inc., 875 S.W.2d 311, 313 (Tex. 1994) (appellate timetable runs from signing date of order that made severed judgment final and appealable).

            The Degrates filed a notice of appeal from each order granting summary judgment.  In this appeal (trial court cause number 03-0132-B/C S-3), the notice was filed on July 2, 2007.  In their response to Adsun’s motion to dismiss this appeal, the Degrates contend that their notice of appeal was timely filed.  Applying Rule 26.1(a)(1), however, the notice of appeal was due to have been filed not later than June 28, 2007.  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, Adsun’s motion to dismiss is granted, and the appeal is dismissed for want of jurisdiction. 

Opinion delivered November 30, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)