Case Information
*0 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 2/9/2015 3:06:10 PM CHRISTOPHER A. PRINE Clerk *1 ACCEPTED 01-15-00020-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 2/9/2015 3:06:10 PM CHRISTOPHER PRINE CLERK
No. 01-15-00020-CV IN THE FIRST COURT OF APPEALS AT HOUSTON WILLIAM A. BALDWIN, Appellant,
v. LPP MORTGAGE LTD., Appellee.
Appealed from the 295 th Judicial District Court of Harris County, Texas APPELLEE LPP MORTGAGE LTD.’S MOTION TO DISMISS APPEAL FOR WANT OF JURISDICTION TO THE HONORABLE JUSTICES OF SAID COURT:
NOW COMES Appellee LPP M ORTGAGE L TD . (“LPP”) and files this Motion to Dismiss Appeal for Want of Jurisdiction pursuant to Tex. R. App. 25.1.
In support thereof, LPP alleges as follows:
P ROCEDURAL H ISTORY 1. This case involves a dispute over Appellant’s home mortgage loan.
On June 23, 2014, the 295 th District Court granted final summary judgment in
cause no. 2010-22793 in favor of LPP, from which Plaintiff appeals.
2. On July 23, 2014, Plaintiff/Appellant filed a Motion for New Trial. A
written order denying Plaintiff’s Motion for New Trial was signed on December
22, 2014. Plaintiff filed a Notice of Appeal on January 9, 2015.
APPELLANT’ S A PPEAL IS U NTIMELY 3. Appellant filed the Notice of Appeal more than six months after final
summary judgment was rendered in favor of Defendant/Appellee and the appeal
should therefore be dismissed as untimely. Generally, a notice of appeal is due
within thirty days after the judgment is signed. See Tex. R. App. P. 26.1. The time
to file a notice of appeal is extended to 90 days after the judgment is signed if,
within 30 days after the judgment is signed, a party files a motion for new trial.
Bonham v. Texas Amer. Title Company , 2014 WL 197755 at *1 (Tex. App. –
Houston [1 st Dist.], Jan. 16, 2014, no pet.) (citing TRAP 26.1). If a notice of appeal
is not timely filed, the appellate court lacks jurisdiction to hear the appeal, and the
appeal must be dismissed. Id. Here, final summary judgment was granted on June
23, 2014. 1 Plaintiff/Appellant filed a Motion for New Trial on July 23, 2014.
Accordingly, Appellant had until September 22, 2014 to file a Notice of Appeal at
*3 the very latest. 2 Plaintiff/Appellant did not file his Notice of Appeal in this matter
until January 9, 2015. The present appeal is therefore untimely, and this Court
should dismiss the appeal for want of jurisdiction.
WHEREFORE, PREMISES CONSIDERED, LPP prays that this Court dismiss Plaintiff/Appellant’s appeal as untimely and for want of jurisdiction and
for such other and further relief to which LPP may show itself justly entitled.
Respectfully submitted, G REGG & V ALBY , P . C .
by: /s/ John H. Miller, III Thomas G. Overbeck State Bar No. 15353450 John H. “Jack” Miller, III State Bar No. 24083503 1700 W. Loop South, Suite 200 Houston, TX 77027 Ph: (713) 960-1377 Fax: (713) 960-1809 *4 CERTIFICATE OF SERVICE I certify that a true and correct copy of the Appellee’s Motion to Dismiss Appeal as Untimely has been served on Appellant in accordance with Rule 9.5 of
the Texas Rules of Appellate Procedure on the 9th day of February, 2015 by
appropriate electronic service, fax to (713) 595-8201 and/or by deposit into the
care and custody of the United States Postal Service in an envelope addressed to:
William A. Baldwin 7936 Grove Ridge Dr.
Houston, TX 77061 /s/ John H. Miller, III
[1] A true and correct copy of the Final Summary Judgment is attached hereto as Exhibit “A” and incorporated herein for all purposes. A true and correct copy of the Motion for New Trial is additionally attached as Exhibit “B” and incorporated herein for all purposes. This Court may take judicial notice of both the date of the Final Summary Judgment and Motion for New Trial.
[2] September 21, 2014 is ninety days from June 23, 2014. However, September 21 fell on a Sunday. Under Tex. R. Civ. Pro. 4’s mechanism for computing time, the Plaintiff would therefore have had until Monday, September 22, 2014 to file his Notice of Appeal.