Gerald King v. BASF Corporation

Dismissed and Memorandum Opinion filed May 11, 2006 Dismissed and Memorandum Opinion filed May 11, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-06-00241-CV ____________ GERALD KING, Appellant V. BASF CORPORATION, Appellee On Appeal from the 23rd District Court Brazoria County, Texas Trial Court Cause No. 33822 M E M O R A N D U M   O P I N I O N This is an appeal from an order granting appellee=s motion for summary judgment signed November 25, 2005. Appellant=s pro se notice of appeal was filed with the clerk for the Court of Appeals for the First District of Texas on February 23, 2006, and filed with the Brazoria County District Clerk on March 8, 2006. When a notice of appeal is mistakenly filed with the appellate court, it is deemed to have been filed with the trial court clerk on the same day. Tex. R. App. P. 25.1(a). Thus, we deem appellant=s notice of appeal filed on February 23, 2006. The notice of appeal must be filed within ninety days after the judgment is signed when appellant has filed a timely motion for new trial, motion to modify the judgment, motion to reinstate under Texas Rule of Civil Procedure 165a, or request for findings of fact and conclusions of law. Tex. R. App. P. 26.1(a). If no timely post-judgment pleading listed above is filed, the notice of appeal must be filed within thirty days after the date the judgment is signed. Tex. R. App. P. 26.1. Because our record indicates appellant=s notice of appeal was not filed timely, on April 7, 2006, notification was transmitted to all parties of the court=s intention to dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a). Appellant filed a response, in which he asserts that he filed a motion to reinstate under Rule 165a alleging his suit was improperly dismissed. He asserts that his motion was timely filed on December 12, 2005, although the motion in our record is file stamped by the District Clerk on January 18, 2006. We first note that Rule 165a is inapplicable here because appellant=s suit was not dismissed for want of prosecution, but instead, a summary judgment was granted on the ground that his personal injury cause of action was barred by the two-year statute of limitations. Nevertheless, any timely filed post-judgment motion that seeks a substantive change in an existing judgment qualifies as a motion to modify and extends the appellate timetable. Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 314 (Tex. 2000). Appellant=s motion was not timely filed, however. Appellant=s motion was filed fifty-four days after the judgment.[1] In the absence of a timely post-judgment motion, appellant=s notice of appeal was due thirty days after judgment. See Tex. R. App. P. 26.1. Appellant=s notice of appeal, filed ninety days after judgment, is untimely. Alternatively, appellant asserts that his notice of appeal is timely to perfect a restricted appeal. See Tex. R. App. P. 26.1(c). A restricted appeal is available only if appellant (1) files a notice of appeal within six months of judgment, (2) was a party to the underlying suit, (3) did not participate in the trial, and (4) shows error apparent on the face of the record. Gold v. Gold,145 S.W.3d 212, 213 (Tex. 2004). We first note that appellant=s notice of appeal did not comply with the requirements for a restricted appeal. See Tex. R. App. P. 25.1(d)(7). Furthermore, appellant has not satisfied the elements entitling him to a restricted appeal. In the context of a summary judgment, filing a response to the summary judgment constitutes participation at trial. Lake v. McCoy, 2006 WL 696706, *1 (Tex. App.CDallas) March 21, 2006, no pet.) (not yet released for publication); Stiver v. Tex. Instruments, Inc., 615 S.W.2d 839, 842 (Tex. Civ. App.CHouston [1st Dist.] 1981, writ ref=d n.r.e.). Appellant filed a response to the summary judgment motion; thus a restricted appeal is precluded. Appellant has also cited, without argument, to Texas Rule of Civil Procedure 306a and American General Fire and Casualty Company v. Schattman, 761 S.W.2d 582 (Tex. App.CFort Worth 1988, no writ) (holding that a motion to reinstate must be filed within 120 days after judgment if notice of judgment was not received timely). Appellant has not followed the procedures required under Rule 306a to establish that he received notice of the judgment more than twenty days after its entry. See Tex. R. Civ. P. 306a(5). Thus, appellant has failed to establish that this court has jurisdiction over his appeal. A timely notice of appeal is essential to vest this court with jurisdiction. See Raulston v. Progressive Ins. Co., 115 S.W.3d 803, 804 (Tex. App.CDallas 2003, no pet.). Because appellant=s notice of appeal is untimely, we are without jurisdiction to consider this appeal. Accordingly, the appeal is ordered dismissed. See Tex. R. App. P. 42.3(c). PER CURIAM Judgment rendered and Memorandum Opinion filed May 11, 2006. Panel consists of Chief Justice Hedges and Justices Yates and Guzman. [1] We are aware that the Texas Supreme Court has held that a pro se inmate=s claim under the Inmate Litigation Act is deemed filed at the time the prison authorities duly receive the document to be mailed. Warner v. Glass, 135 S.W.3d 681, 684 (Tex. 2004). This interpretation of Afiled@ has also been applied in the federal system to an inmate=s notice of appeal. See Fed. R. App. P. 4(c)(1);. but see Wright v. T.D.C.J.-I.D.,137 S.W.3d 693, 695 (Tex. App.CHouston [1st Dist.] 2004, no pet.) (noting Texas Rules of Appellate Procedure preclude application of federal approach to notices of appeal of pro se prisoners). This interpretation of Afiled@ has not been extended to a post-judgment motion, however. Such an interpretation would contravene the rules governing finality of judgments. A trial court loses plenary power over the judgment if a timely post-judgment motion is not filed within thirty days after the judgment is signed. See Tex. R. Civ. P. 329b. An order reinstating a cause must be in writing and signed during the trial court=s period of plenary power. See Emerald Oaks Hotel/Conf. Ctr., Inc. v. Zardenetta, 776 S.W.2d 577, 578 (Tex. 1989); In re Bokeloh, 21 S.W.3d 784, 792 (Tex. App.CHouston [14th Dist.] 2000, orig. proceeding) (holding order reinstating case more than thirty days after dismissal is void). To have a post-judgment motion received weeks later be considered timely filed because it had earlier been handed to prison mail officials would restore the trial court=s plenary jurisdiction beyond the time that the judgment would have become final. Moreover, it is unclear what proof is required to establish timely delivery to prison authorities. Appellant=s certificate of service contains a statement that the motion was sent to the district clerk and opposing counsel Aby placing same in the Institution=s Internal mailing system, Postage Prepaid on this 12th day of December, 2005.@ For these reasons, in the absence of further guidance from the Texas Supreme Court, we decline to extend the application of Warner to these facts, and we need not determine whether appellant=s unverified statement would be sufficient to demonstrate delivery.