Francisco Javier Martinez v. Silverline Services, LLC

Opinion filed December 30, 2021
In The
Eleventh Court of Appeals
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No. 11-21-00277-CV
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FRANCISCO JAVIER MARTINEZ, Appellant
V.
SILVERLINE SERVICES, LLC, Appellee
On Appeal from the 238th District Court
Midland County, Texas
Trial Court Cause No. CV54786
MEMORANDUM OPINION
Appellant, Francisco Javier Martinez, filed a notice of appeal in which he
stated that he wished to appeal from the trial court’s October 29, 2021 “judgment.”
On October 29, the trial court entered an order denying Appellant’s motion to
reinstate the case on the trial court’s docket. Upon docketing this appeal, the clerk
of this court wrote the parties and informed them that the October 29 order did not
appear to be an appealable order and that the notice of appeal appeared to have been
untimely filed. We requested that Appellant respond, on or before December 16,
and show grounds to continue the appeal. We also informed Appellant that this
appeal may be dismissed for want of jurisdiction. Appellant has not filed a response
to this court’s letter.
The documents filed in this court reflect that on July 15, 2021, the trial court
determined that the case should be dismissed for want of prosecution. On that date,
the trial court signed an order of dismissal. On August 16, 2021, Appellant timely
filed a motion to reinstate the case or, alternatively, grant a new trial, which
the trial court denied on October 29, 2021. See TEX. R. APP. P. 4.1(a); TEX. R.
CIV. P. 329b(a).
An appeal from an order dismissing a cause for want of prosecution is taken
from the order of dismissal, not from the trial court’s ruling on the motion to reinstate
or the motion for new trial. Weik v. Second Baptist Church of Houston, 988 S.W.2d
437, 438 (Tex. App.—Houston [1st Dist.] 1999, pet. denied). Thus, the time for
Appellant to perfect an appeal ran from July 15, the date that the trial court signed
the order of dismissal, which was the final judgment in this case. Appellant’s notice
of appeal was therefore due to be filed on October 13, 2021—ninety days after the
July 15 order was signed. See TEX. R. APP. P. 4.1(a), 26.1(a). Appellant’s notice of
appeal was not filed until December 1, 2021. The notice of appeal was therefore
filed outside the fifteen-day extension period that is authorized by the rules. See
TEX. R. APP. P. 26.3.
Absent a timely notice of appeal, this court is without jurisdiction to consider
an appeal. Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 564 (Tex. 2005);
Garza v. Hibernia Nat’l Bank, 227 S.W.3d 233, 233–34 (Tex. App.—Houston [1st
Dist.] 2007, no pet.); see Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997)
(stating that, once the fifteen-day period for granting a motion for extension of time
has passed, a party can no longer invoke the appellate court’s jurisdiction). We note
that we are prohibited from suspending the rules “to alter the time for perfecting an
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appeal in a civil case.” TEX. R. APP. P. 2. Because we are without jurisdiction, we
must dismiss the appeal. See TEX. R. APP. P. 42.3(a).
Accordingly, this appeal is dismissed for want of jurisdiction.
PER CURIAM
December 30, 2021
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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