Michael Wainright D/B/A Wainright Construction v. David Delouche

NO. 12-21-00198-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

MICHAEL WAINRIGHT D/B/A § APPEAL FROM THE
WAINRIGHT CONSTRUCTION,
APPELLANT
§ COUNTY COURT AT LAW
V.

DAVID DELOUCHE, § CHEROKEE COUNTY, TEXAS
APPELLEE

MEMORANDUM OPINION
PER CURIAM
On November 1, 2021, Michael Wainright d/b/a Wainright Construction filed a notice of
appeal from a judgment signed on July 3, 2021. On November 3, this Court notified Wainright
that his notice of appeal does not show the jurisdiction of this Court, i.e., there was no notice of
appeal filed within the time allowed by the rules of appellate procedure and no timely motion for
an extension of time to file the notice of appeal. See TEX. R. APP. P. 26.1, 26.3. We informed
Wainright that his appeal would be dismissed unless the information was amended on or before
November 15 to show this Court’s jurisdiction. Wainright filed an amended notice of appeal, in
which he states the judgment or order appealed from was signed on August 3, his motion for new
trial was filed on September 1, and November 3 was the deadline to appeal.
However, the record reflects that while the judgment was filed on August 3, it was signed
on July 3. Under Rule 26.1, the notice of appeal must be filed within “30 days after the
judgment is signed,” or in this case, August 2. TEX. R. APP. P. 26.1 (emphasis added). The
notice of appeal must be filed within ninety days “after the judgment is signed” if any party
timely files a motion for new trial. TEX. R. APP. P. 26.1(a)(1) (emphasis added). To be timely,
Wainright’s motion for new trial was due by August 2. See TEX. R. CIV. P. 329b(a) (motion for
new trial must be filed “prior to or within thirty days after the judgment or other order

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complained of is signed”) (emphasis added). Because he filed a motion for new trial on
September 1, it was untimely and did not extend the appellate deadline for filing a notice of
appeal. See TEX. R. APP. P. 26.1(a)(1). Thus, Wainright’s notice of appeal was due on or before
August 2. TEX. R. APP. P. 26.1. But the notice of appeal was not filed until November 1, making
it untimely. As this Court is not authorized to extend the time for perfecting an appeal except as
provided by the Texas Rules of Appellate Procedure, we dismiss the appeal for want of
jurisdiction. See TEX. R. APP. P. 42.3(a).
Opinion delivered November 17, 2021.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

NOVEMBER 17, 2021

NO. 12-21-00198-CV

MICHAEL WAINRIGHT D/B/A WAINRIGHT CONSTRUCTION,
Appellant
V.
DAVID DELOUCHE,
Appellee

Appeal from the County Court at Law
of Cherokee County, Texas (Tr.Ct.No. CV09832)

THIS CAUSE came on to be heard on the appellate record, and the same
being considered, it is the opinion of this Court that it is without jurisdiction of the appeal, and
that the appeal should be dismissed.
It is therefore ORDERED, ADJUDGED and DECREED by this Court that
this appeal be, and the same is, hereby dismissed for want of jurisdiction; and that this decision
be certified to the court below for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.

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