Donald Spencer v. Joe Pagliarulo and CC Media Holdings Inc.
448 S.W.3d 605
Tex. App.2014Background
- Appellant Donald E. Spencer appealed a trial court order granting a motion to dismiss under Tex. Civ. Prac. & Rem. Code §27.003.
- Trial court granted the §27.003 motion to dismiss on March 3, 2014 and entered a final judgment on March 25, 2014.
- Spencer’s notice of appeal was due twenty days after judgment (April 14, 2014) under accelerated appeal rules, with a potential extension to thirty-five days upon timely extension motion.
- Spencer filed his notice of appeal on May 2, 2014, thirty-eight days after judgment, rendering it untimely.
- Texas Rule of Appellate Procedure 26.1 and 26.3 govern timing; response to a jurisdictional notice does not cure untimeliness.
- Spencer previously argued a sixty-day period under former §27.008(c), which was repealed effective June 14, 2013 and is inapplicable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is Spencer's notice of appeal timely under accelerated appeal rules? | Spencer | Pagliarulo/CC Media | No; untimely notice of appeal; no jurisdiction |
| Can Spencer's response establish jurisdiction despite untimely notice? | Spencer | Pagliarulo/CC Media | No; response failed to show timely appeal or jurisdiction |
Key Cases Cited
- In re K.A.F., 160 S.W.3d 923 (Tex. 2005) (accelerated-appeal deadlines strict; extended only by timely extension)
- Verburgt v. Dorner, 959 S.W.2d 615 (Tex. 1997) (extension rules under accelerated appeals)
- In re R.B.M., 338 S.W.3d 755 (Tex. App.—Houston [14th Dist.] 2011) (dismissing appeal for want of jurisdiction when untimely)