Joshua Knight v. Kristin Knight

IN THE
TENTH COURT OF APPEALS

No. 10-14-00037-CV

JOSHUA KNIGHT,
Appellant
v.

KRISTIN KNIGHT,
Appellee

From the County Court at Law No. 1
Johnson County, Texas
Trial Court No. D20120001

MEMORANDUM OPINION

On February 6, 2014, appellant, Joshua Knight, filed a “Motion for Appeal” along

with numerous other motions in this Court. In his “Motion for Appeal,” appellant

stated that he wished to appeal the “Original final decree [that] was issued in Johnson

County Civil Court 1 by Judge Robert Mayfield.”

In response to appellant’s filings, on March 21, 2014, this Court sent appellant a

letter informing him that his notice of appeal in this matter contained several

deficiencies. See TEX. R. APP. P. 25.1. Among the deficiencies was that appellant failed
to demonstrate that he properly served his notice of appeal on all parties. See id. at R.

25.1(e) (“The notice of appeal must be served on all parties to the trial court’s final

judgment or, in any interlocutory appeal, on all parties to the trial court proceeding.”);

see also id. at R. 9.5(a) (“At or before the time of a document’s filing, the filing party must

serve a copy on all parties to the proceeding.”), (d) (“A document presented for filing

must contain a proof of service in the form of either an acknowledgement of service by

the person served or a certificate of service.”), (e) (noting that the certificate of service

must state: “(1) the date and manner of service; (2) the name and address of each

person served; and (3) if the person served is a party’s attorney, the name of the party

represented by that attorney”).

Additionally, appellant’s notice of appeal did not state the date of the judgment

from which he wished to appeal. See id. at R. 25.1(d)(2) (requiring that a notice of

appeal contain “the date of the judgment or order appealed from”). We notified

appellant that his appeal may not be timely, and we warned appellant that we would

dismiss this appeal, unless within twenty-one days from the date of our letter, a

response was filed showing grounds for continuing the appeal. See id. at R. 26.1, 42.3,

44.3.

On April 7, 2014, this Court received a response from appellant, wherein

appellant explained that he wished to appeal from the trial court’s judgment dated

“October 16th.” We presume appellant wishes to appeal from the trial court’s judgment

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dated October 16, 2013. With regard to our warning about service, appellant stated that

he cannot serve the opposing party in this matter because he is not allowed to send mail

to her, though he did mention that he thought he could have his father serve the

opposing party. In any event, appellant did not provide a proof of service in the form

of either an acknowledgement of service by the person served or a certificate of service,

as is required by Texas Rule of Appellate Procedure 9.5(d). See id. at R. 9.5(d).

Nevertheless, Texas Rule of Appellate Procedure 26.1(a) provides that a notice of

appeal must be filed within thirty days after the judgment is signed, except as follows:

(a) the notice of appeal must be filed within 90 days after the judgment is
signed if any party timely files:

(1) a motion for new trial;

(2) a motion to modify the judgment;

(3) a motion to reinstate under Texas Rule of Civil Procedure 165a; or

(4) a request for findings of fact and conclusions of law if findings and
conclusions either are required by the Rules of Civil Procedure or,
if not required, could properly be considered by the appellate
court.

Id. at R. 26.1(a).

Here, appellant filed his notice of appeal on February 6, 2014—113 days after the

trial court signed the complained-of judgment. Accordingly, appellant’s notice of

appeal is untimely. See id. We recognize that appellant filed a motion for extension of

time to file his notice of appeal among the many motions he filed on February 7, 2014.

Knight v. Knight Page 3
However, pursuant to Texas Rule of Appellate Procedure 26.3, this motion is also

untimely. See id. at R. 26.3. Therefore, because appellant’s notice of appeal is untimely

and his response did not provide grounds for continuing the appeal, this appeal is

dismissed.1

Absent a specific exemption, the Clerk of the Court must collect filing fees at the

time a document is presented for filing. Id. at R. 12.1(b); Appendix to Tex. R. App. P.,

Order Regarding Fees (Amended Aug. 28, 2007, eff. Sept. 1, 2007); see TEX. R. APP. P. 5;

10TH TEX. APP. (WACO) LOC. R. 5; TEX. GOV’T CODE ANN. §§ 51.207(b), 51,208, 51.941(a)

(West 2013). Under these circumstances, we suspend the rule and order the Clerk to

write off all unpaid filing fees in this case. TEX. R. APP. P. 2. The write-off of the fees

from the accounts receivable of the Court in no way eliminates or reduces the fees

owed.

AL SCOGGINS
Justice

Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Appeal dismissed
Opinion delivered and filed April 17, 2014
[CV06]

1 A motion for rehearing may be filed within 15 days after the judgment or order of this Court is

rendered. TEX. R. APP. P. 49.1. If appellant desires to have the decision of this Court reviewed by the
Texas Supreme Court, a petition for review must be filed with the Texas Supreme Court clerk within 45
days after either the date the court of appeals’ judgment was rendered or the date the last ruling on all
timely motions for rehearing was made by the court of appeals. TEX. R. APP. P. 53.7(a).

Furthermore, given the disposition of this case, we dismiss appellant’s pending motions as moot.

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