

Opinion issued January
27, 2011.

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-10-00715-CV
———————————
Ryland Enterprise, Inc., Appellant
V.
Vickie
Weatherspoon,
Appellee

 

 
On Appeal from the 127th District
Court
Harris County, Texas

Trial Court Case No. 0740425
 

 
MEMORANDUM OPINION
          This is an attempted appeal of the
trial court’s judgment in favor of appellee, Vickie Weatherspoon.  Weatherspoon filed a motion to dismiss this
appeal for lack of jurisdiction.  She
argued that appellant, Ryland Enterprise, Inc. (“Ryland”), failed to file a
timely notice of appeal.  Ryland
responded to Weatherspoon’s motion to dismiss, arguing that its motion for
judgment notwithstanding the verdict extended the deadline for filing a notice
of appeal. 
     This case was presented to a
jury on May 3, 2010, and the jury rendered a verdict in favor of Weatherspoon
on May 4, 2010.  Weatherspoon moved to
enter judgment on the jury verdict, and on May 25, 2010, Ryland moved for
judgment notwithstanding the verdict.  On
June 14, 2010, the trial court entered judgment in favor of Weatherspoon and
denied Ryland’s motion to enter judgment notwithstanding the verdict.  No post-judgment motions were filed.  Ryland filed its notice of appeal on August
18, 2010.
Ryland cites Kirschberg v. Lowe, 974 S.W.2d 844 (Tex. App.—San Antonio 1998, no
pet.), to support its contention that
its motion for judgment notwithstanding the verdict extended the deadline for
filing a notice of appeal to 90 days following entry of the judgment.  However,
Kirschberg does not apply to the present case.  The San Antonio Court of Appeals held that
“the filing of any postjudgment
motion or other instrument that (1) is filed within the time for filing a
motion for a new trial and (2) ‘assail[s] the trial court’s judgment’ extends
the appellate timetable.”  Kirschberg, 974 S.W.2d at 847–48 (emphasis
added) (quoting Gomez v. Tex. Dep’t of
Criminal Justice, 896 S.W.2d 176, 176–77 (Tex. 1995) (per curiam)).  Here, Ryland’s motion for judgment
notwithstanding the verdict was filed on May 25, 2010, before final judgment
was entered.  Furthermore, the trial
court expressly denied the motion for judgment notwithstanding the verdict on
the same day it entered final judgment.
The trial court signed the final
judgment on June 14, 2010, and no post-judgment motions were filed.  Therefore, the deadline for filing a notice
of appeal was July 14, 2010.  See Tex.
R. App. P. 26.1 (providing that notice of appeal must be signed within
30 days after judgment is signed). 
Ryland filed its notice of appeal on August 18, 2010—65 days after the final judgment was signed.  Thus, Ryland failed to timely perfect its
appeal.  See Tex. R. App. P.
25.1, 26.1.
          Accordingly,
Weatherspoon’s motion to dismiss is granted, and the appeal is dismissed.  Tex.
R. App. P. 42.3(a).  Any pending
motions are dismissed as moot.
PER CURIAM
 
Panel consists of Justices Keyes, Sharp, and Massengale.
 

