Roger Kroschel, Jr., Next Friend to Roger Kroschel, III v. San Angelo Fat Stock and Rodeo Association, Inc., Kermit Wendland and Jimmy Belcher--Appeal from 119th District Court of Tom Green County

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Laws-info.com » Cases » Texas » 3rd District Court of Appeals » 1997 » Roger Kroschel, Jr., Next Friend to Roger Kroschel, III v. San Angelo Fat Stock and Rodeo Association, Inc., Kermit Wendland and Jimmy Belcher--Appeal from 119th District Court of Tom Green County

State: Texas

Court: Texas Northern District Court

Docket No: 03-97-00542-CV

Case Date: 10/23/1997

Plaintiff: Roger Kroschel, Jr., Next Friend to Roger Kroschel, III

Defendant: San Angelo Fat Stock and Rodeo Association, Inc., Kermit Wendland and Jimmy Belcher--Appeal from 11

Preview:Roger Kroschel, Jr., Next Friend to Roger Kroschel, III
v. San Angelo Fat Stock and Rodeo Association, Inc.,
Kermit Wendland and Jimmy Belcher--Appeal from
119th District Court of Tom Green County
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-97-00542-CV
Roger Kroschel, Jr., Next Friend to Roger Kroschel, III, Appellant
v.
San Angelo Fat Stock and Rodeo Association, Inc., Kermit Wendland and
Jimmy Belcher, Appellees
FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT
NO. B-96-0836-C, HONORABLE DICK ALCALA, JUDGE PRESIDING
PER CURIAM
Roger Kroschel, Jr. attempts to appeal the district court's order granting a final summary judgment in favor of the San
Angelo Fat Stock Show and Rodeo Association, Inc., Kermit Wendland, and Jimmy Belcher. Because Kroschel failed
to file timely a perfecting instrument, we will dismiss the appeal for want of jurisdiction.
The trial court signed the judgment on May 12, 1997. Kroschel filed a motion for new trial on June 11, 1997.
Consequently, Kroschel had ninety days to perfect an appeal--from May 13, 1997, to August 11, 1997. Tex. R. App. P.
41(a)(1) (see new Rule of Appellate Procedure 26.1(a)); Tex. R. Civ. P. 329b; Sur v. R.W. Otts, Inc., 800 S.W.2d 647,
648 (Tex. App.--Houston [14th Dist.] 1990, writ denied).
In reviewing the submitted transcript, the Clerk of this Court noted that Kroschel's cost bond was untimely filed on
August 13, 1997. Kroschel had fifteen days after August 11, until August 26, to file a motion to extend time to file a
perfecting instrument, however, he failed to do so. Tex. R. App. P. 41(a)(2) (see new Rule of Appellate Procedure
26.3).
The Clerk of this Court sent a letter to the parties questioning the timeliness of Kroschel's perfecting instrument. The
Clerk gave the parties fourteen days to respond and show grounds for continuing the appeal or the cause would be
dismissed for want of jurisdiction. Tex. R. App. P. 60(a)(2) (see new Rule of Appellate Procedure 42.3(a)). The Clerk
has received no response from any party.
The time period for filing a perfecting instrument is jurisdictional. Federal Lanes, Inc. v. City of Houston, 905 S.W.2d
686, 689 (Tex. App.--Houston [1st Dist.] 1995, writ denied); see also Richie v. Ranchlander Nat'l Bank, 724 S.W.2d
851, 854-55 (Tex. App.--Austin 1986, no writ) (citing Davies v. Massey, 561 S.W.2d 799, 801 (Tex. 1978)). When an
appellant fails to timely file a perfecting instrument or properly seek an extension of time to file a perfecting
instrument, the appellate court must dismiss the cause for lack of jurisdiction. Gonzales v. Doctors Hosp.--East Loop,
814 S.W.2d 536, 537 (Tex. App --Houston [1st Dist.] 1991, no writ).
Because Kroschel's perfecting instrument was not timely filed, this Court is without jurisdiction over the appeal. The
appeal is dismissed for want of jurisdiction.
Before Chief Justice Carroll, Justices Jones and Kidd
Dismissed for Want of Jurisdiction
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Filed: October 23, 1997
Do Not Publish
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