Opinion
No. 02-18-00341-CV
12-13-2018
JERALD H. MILLER, Appellant v. SHEREE LUCAS, Appellee
On Appeal from the 352nd District Court Tarrant County, Texas
Trial Court No. 352-291003-17 Before Gabriel, Kerr, and Pittman, JJ.
MEMORANDUM OPINION
Appellant Jerald H. Miller attempts to appeal from the trial court's "Final Judgment" in favor of appellee Sheree Lucas and from "all judgments . . . to the date of [his] Notice of Appeal." After timely filing a motion for new trial on July 24, which the trial court denied on July 31, Miller filed a notice of appeal on October 22. On October 24, we notified Miller that his notice of appeal appeared to have been untimely filed and advised that we would dismiss his appeal for want of jurisdiction unless he responded no later than November 5 and showed grounds to continue the appeal. See Tex. R. App. P. 42.3(a), 44.3. Miller did not respond.
Miller erroneously states in his notice of appeal that the date of the final judgment was July 31, 2018; but the trial court signed the final judgment on June 21, 2018.
Although the motion was filed one day after the thirty-day deadline expired, Miller had placed it in the mail on July 21, rendering it timely filed. See Tex. R. Civ. P. 5, 329b(a); see also Tex. R. App. P. 9.2(b)(1).
Because Miller timely filed a motion for new trial but did not file a motion to extend the time to file his notice of appeal, the notice was due no later than September 19. See Tex. R. App. P. 26.1(a)(1). Because Miller filed his notice of appeal thirty-three days after the appellate deadline expired, we do not have jurisdiction over his attempted appeal. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997); Florence v. Miller, No. 02-17-00325-CV, 2017 WL 4683829, at *1 (Tex. App.—Fort Worth Oct. 19, 2017, no pet.) (mem. op.); Ross v. Guerra, 83 S.W.3d 899, 900 (Tex. App.— Texarkana 2002, no pet.); see also Tex. R. App. P. 26.3. Accordingly, we dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 43.2(f).
/s/ Lee Gabriel
Lee Gabriel
Justice Delivered: December 13, 2018