In the Interest of D.T.K.
416 S.W.3d 1
Tex. App.2012Background
- This appeal arises from a divorce and a nunc pro tunc final decree signed December 22, 2010.
- Appellee mother filed an affidavit of indigence about three weeks after the decree and a cross-appeal on March 7, 2011.
- The court reporter filed a contest to the indigence affidavit on April 6, 2011, followed by a hearing on May 20, 2011 at which the contest was sustained.
- Appellee sought review arguing the contest was not filed within ten days of the filing of the affidavit and that the cross-appeal was untimely.
- The court held there was no timely cross-appeal and dismissed the cross-appeal and the motion for review for want of jurisdiction.
- On its own motion, the court had withdrawn its prior December 5, 2011 opinion and issued this new opinion denying en banc reconsideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of the cross-appeal | Appellee contends the cross-appeal was timely. | Appellant argues the cross-appeal was untimely under Rule 26.1(d). | Cross-appeal untimely; no jurisdiction over the cross-appeal. |
| Jurisdiction to review the contest | Appellee asserts the trial court's contest should be reviewable. | Appellee's late cross-appeal defeats appellate jurisdiction. | No jurisdiction to review the contest; dismiss. |
| Effect of nunc pro tunc judgment on deadlines | Deadline calculations should reflect nunc pro tunc signing. | Deadlines run from the nunc pro tunc date per controlling authority. | Deadlines ran from the nunc pro tunc date; untimely cross-appeal filed. |
Key Cases Cited
- M.O. Dental Lab v. Rape, 139 S.W.3d 671 (Tex.2004) (jurisdiction may be raised sua sponte; not presuming jurisdiction)
- PopCap Games, Inc. v. Mumbo-Jumbo, LLC, 350 S.W.3d 699 (Tex.App.-Dallas 2011, pet. filed) (timeliness of cross-appeal governs jurisdictional inquiry)
- Bell v. Zurich Am. Ins. Co., 311 S.W.3d 507 (Tex.App.-Dallas 2009, pet. denied) (jurisdictional issues may be raised on motion or sua sponte)
- Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308 (Tex.2000) (deadline rules when nunc pro tunc judgments are entered)
- Lab. Corp. of Am. v. Mid-Town Surgical Ctr., Inc., 16 S.W.3d 527 (Tex.App.-Dallas 2000) (appellate deadlines tied to dates of judgment)