Michael White v. Kay Vargas ( 2024 )

DISMISS and Opinion Filed April 17, 2024
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00618-CV
MICHAEL WHITE, Appellant
V.
KAY VARGAS, Appellee
On Appeal from the 160th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-22-15134
MEMORANDUM OPINION
Before Chief Justice Burns, Justice Molberg, and Justice Pedersen, III
Opinion by Chief Justice Burns
The trial court dismissed the underlying case for want of prosecution on
January 27, 2023 and appellant filed a timely motion to reinstate. On April 25,
2023, the trial court denied appellant’s motion to reinstate. Appellant filed a notice
of appeal on June 21, 2023 stating he was appealing the April 25th order. Because
the dismissal order triggered the time to file the notice of appeal and appellant did
not file a notice of appeal within ninety days of the signing of that order, we
questioned our jurisdiction over the appeal and directed the parties to file letter
briefs. See Weik v. Second Baptist Church of Houston, 988 S.W.2d 437, 438 (Tex.
App.—Houston [1st Dist.] 1999, pet. denied) (when party files motion to reinstate
following dismissal of case for want of prosecution, dismissal order and not order
denying motion to reinstate is appealable order); see TEX. R. APP. P. 26.1(a), 26.3
(when party files timely motion to reinstate, notice of appeal due ninety days after
judgment signed or, with an extension motion, fifteen days after the deadline).
Without a timely filed notice of appeal, this Court lacks jurisdiction. See Brashear
v. Victoria Gardens of McKinney, L.L.C., 302 S.W.3d 542, 545 (Tex. App.—
Dallas 2009, no pet.) (op. on reh’g) (timely filing of notice of appeal
jurisdictional).
In his jurisdictional brief, appellant asserts that the order denying his motion
to reinstate is appealable. Appellant misconstrues our jurisdictional concern. Our
concern is not that the order cannot be reviewed, it is that the time for filing the
notice of appeal runs from the order of dismissal. Although a party may complain
about the denial of a motion to reinstate on appeal, the appealable order which
triggers the time to appeal is the dismissal order. See Weik, 988 S.W.2d at 438.
Rule 26.1 of the Texas Rules of Appellate Procedure provides that the time
to file a notice of appeal runs from the date the judgment is signed. TEX. R. APP. P.
26.1. Here, the trial court signed the order of dismissal on January 27, 2023.
Because appellant filed a timely motion to reinstate extending the appellate
timetable, the notice of appeal was due on April 27, 2023 or, with an extension
motion, May 12, 2023. See id. 26.1(a), 26.3. Appellant filed a notice of appeal on
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June 21, 2023, forty days past the last possible deadline. Because the notice of
appeal was untimely filed, we lack jurisdiction and dismiss the appeal. See TEX. R.
APP. P. 42.3(a).
/Robert D. Burns, III/
ROBERT D. BURNS, III
230618F.P05 CHIEF JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
MICHAEL WHITE, Appellant On Appeal from the 160th Judicial
District Court, Dallas County, Texas
No. 05-23-00618-CV V. Trial Court Cause No. DC-22-15134.
Opinion delivered by Chief Justice
KAY VARGAS, Appellee Burns. Justices Molberg and Pedersen,
III participating.
In accordance with this Court’s opinion of this date, the appeal is
DISMISSED.
It is ORDERED that appellee KAY VARGAS recover her costs of this
appeal from appellant MICHAEL WHITE.
Judgment entered April 17, 2024
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