DISMISS and Opinion Filed July 6, 2016.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-16-00500-CV
LEE WEIR, MIKE WEIR, AND AL WEIR, Appellants
V.
STERLING STATE BANK, Appellee
On Appeal from the 191st Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-14-07718
MEMORANDUM OPINION
Before Justices Lang-Miers, Evans, and Brown
Opinion by Justice Evans
In a letter dated May 23, 2016, the Court questioned its jurisdiction over this appeal
because it appears the notice of appeal is untimely. We instructed appellants to file, within ten
days, a letter brief addressing our concern and cautioned them that failure to do so may result in
dismissal of the appeal without further notice. As of today’s date, appellants have not filed the
requested letter brief.
Where no post-judgment motion extending the appellate timetable is filed, a notice of
appeal is due thirty days after the date the judgment is signed. See TEX. R. APP. P. 26.1. Without
a timely filed notice of appeal, this Court lacks jurisdiction. See TEX. R. APP. P. 25.1(b).
Appellants appeal from the trial court’s post-judgment turnover order and order
appointing a receiver signed on February 2, 2016. They filed their notice of appeal on April 22,
2016. Citing to rules 4.2(a)(1) and 26.1 of the rules of appellate procedure, appellants state in
their notice of appeal that it is being filed “within thirty (30) days after Defendants acquired
actual notice of the signing of the Order.” See TEX. R. APP. P. 4.2(a)(1), 26.1. The procedure to
gain additional time where a party does not receive notice of a judgment is governed by rule
306a(5) of the rules of civil procedure. See TEX. R. APP. P. 4.2(b); TEX. R. CIV. P. 306a(5). To
show the applicability of rule 306a(4), appellants were required to prove on sworn motion in the
trial court the date on which either they or their attorney acquired knowledge of the turnover
order. See TEX. R. CIV. P. 306a(4), (5). After hearing a rule 306a motion, the trial court must
sign a written order that finds the date when the party or his attorney first either received notice
or actual knowledge that the judgment or order was signed. See TEX. R. APP. P. 4.2(c). The
record before this Court does not contain the required motion or order.
Without a written order showing the date that the trial court found the appellants or their
attorney first either received notice of or actual knowledge of the order, the notice of appeal was
due on March 3, 2016. See TEX. R. APP. P. 26.1. Appellants filed their notice of appeal on April
2, 2016, fifty days past the deadline. Because of the untimely notice of appeal, we dismiss the
appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a).
/David Evans/
160500F.P05 DAVID EVANS
JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
LEE WEIR, MIKE WEIR, AND AL WEIR, On Appeal from the 191st Judicial District
Appellants Court, Dallas County, Texas
Trial Court Cause No. DC-14-07718.
No. 05-16-00500-CV V. Opinion delivered by Justice Evans.
Justices Lang-Miers and Brown
STERLING STATE BANK, Appellee participating.
In accordance with this Court’s opinion of this date, the appeal is DISMISSED.
It is ORDERED that appellee STERLING STATE BANK recover its costs of this appeal
from appellants LEE WEIR, MIKE WEIR, AND AL WEIR.
Judgment entered this 6th day of July, 2016.
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