Yolanda H. Montoya v. Rosemary H. Gutierrez

Fourth Court of Appeals San Antonio, Texas March 13, 2019

No. 04-19-00070-CV

Yolanda H. MONTOYA, et al, Appellants

v.

Rosemary H. GUTIERREZ, Appellee

From the 131st Judicial District Court, Bexar County, Texas Trial Court No. 2014CI07335 Honorable Karen H. Pozza, Judge Presiding

ORDER In a regular appeal such as this one, a notice of appeal ordinarily is due within thirty (30) days after the judgment is signed. TEX. R. APP. P. 26.1. A notice of appeal may be filed within ninety (90) days after the judgment is signed if a party timely files a request for findings of fact and conclusions of law. Id. 26.1(a)(4). A request for findings of fact and conclusions of law is timely if filed within twenty (20) days after the judgment is signed. TEX. R. CIV. P. 296.

On February 6, 2019, appellants filed in this court a notice of appeal from a judgment signed by the trial court on November 20, 2018. The notice of appeal contains a file-stamp indicating it was filed in the trial court on February 5, 2019—more than thirty (30) but less than ninety (90) days after the date the judgment was signed. On March 12, 2019, the district clerk filed a clerk’s record that contains the November 20, 2018 judgment, as well as a request for findings of fact and conclusions of law filed by appellants on December 18, 2018—more than twenty (20) days after the date the judgment was signed.

Therefore, because it appears from the record presently before us that appellants’ notice of appeal was untimely filed, appellants are ORDERED to show cause within ten (10) days of the date of this order why this appeal should not be dismissed for lack of jurisdiction. See Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 564 (Tex. 2005) (holding court of appeals lacks jurisdiction to consider appeal without a timely notice of appeal). If appellants fail to respond to this order within ten (10) days, this appeal will be dismissed. See TEX. R. APP. P. 42.3. All other appellate deadlines are suspended until further order of this court.

_________________________________ Sandee Bryan Marion, Chief Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 13th day of March, 2019.

___________________________________ KEITH E. HOTTLE, Clerk of Court