Airlinx Communications, Inc. v. Ultra Electronics Advanced Tactical Systems, Inc.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-15-00637-CV

Airlinx Communications, Inc., Appellant

v.

Ultra Electronics Advanced Tactical Systems, Inc., Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
NO. D-1-GN-12-002873, HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING

MEMORANDUM OPINION

Appellant Airlinx Communications, Inc. seeks to appeal a final judgment signed

on July 15, 2015. According to the clerk’s record, no motion for new trial or other post-judgment

motion was filed. See Tex. R. App. P 26.1(a) (when certain post-judgment motions are filed, notice

of appeal is due within ninety days after judgment is signed). Consequently, Airlinx’s deadline to

file its notice of appeal was August 14, 2015. See id. R. 26.1 (generally, notice of appeal must be

filed within thirty days after judgment is signed). Airlinx’s notice of appeal was not filed until

October 7, 2015.

The Clerk of this Court notified Airlinx, by letter, that it appeared that Airlinx’s

notice of appeal was not timely filed and, as a result, that the Court lacked jurisdiction to consider

this appeal. Airlinx responded in writing, asserting that its notice of appeal should be deemed timely

under the mailbox rule, Rule 9.2 of the Texas Rules of Appellate Procedure. See id. R. 9.2. In support
of its assertion, Airlinx submitted the affidavit of its President, Tjalling Hoiska, stating that “the

notice of appeal for this trial court case was mailed to the district clerk’s office on or before

August 14, 2015.”

A document is deemed timely filed under mailbox rule only when (1) the document

is properly deposited in the mail or delivered to a commercial delivery service on or before the last

day for filing and (2) the document is received by the clerk within ten days of the filing deadline.

See id. R. 9.2(b). Here, Airlinx’s notice of appeal was file stamped by the trial court clerk on

October 7, 2015, and the signature block on the notice of appeal bears Hoiska’s signature and

purports to be signed by him on October 7, 2015. Based on the record before us, we have no basis

to conclude that Airlinx’s notice of appeal was received by the trial court within ten days after

the filing deadline, but not filed by the trial court clerk until October 7, 2015. Because Airlinx’s

notice of appeal was not timely filed and the mailbox rule does not apply, this Court lacks

jurisdiction to consider this appeal. See id. R. 25.1(b). We dismiss the appeal for want of jurisdiction.

See id. R. 42.3(a).

__________________________________________

Scott K. Field, Justice

Before Chief Justice Rose, Justices Pemberton and Field

Dismissed for Want of Jurisdiction

Filed: December 11, 2015

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