                                                                                          ACCEPTED
                                                                                     01-15-00020-CV
                                                                           FIRST COURT OF APPEALS
                                                                                   HOUSTON, TEXAS
                                                                                 2/9/2015 3:06:10 PM
                                                                                CHRISTOPHER PRINE
                                                                                              CLERK

                               No. 01-15-00020-CV

             IN THE FIRST COURT OF APPEALS AT HOUSTONFILED IN
                                                              1st COURT OF APPEALS
                                                                  HOUSTON, TEXAS
                                                              2/9/2015 3:06:10 PM
                            WILLIAM A. BALDWIN,               CHRISTOPHER A. PRINE
                                                                      Clerk
                                    Appellant,

                                         v.

                             LPP MORTGAGE LTD.,

                                     Appellee.


                Appealed from the 295th Judicial District Court of
                             Harris County, Texas


              APPELLEE LPP MORTGAGE LTD.’S
    MOTION TO DISMISS APPEAL FOR WANT OF JURISDICTION


TO THE HONORABLE JUSTICES OF SAID COURT:

      NOW COMES Appellee LPP MORTGAGE LTD. (“LPP”) and files this

Motion to Dismiss Appeal for Want of Jurisdiction pursuant to Tex. R. App. 25.1.

In support thereof, LPP alleges as follows:

                              PROCEDURAL HISTORY

      1.    This case involves a dispute over Appellant’s home mortgage loan.

On June 23, 2014, the 295th District Court granted final summary judgment in

cause no. 2010-22793 in favor of LPP, from which Plaintiff appeals.


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DEFENDANT LPP MORTGAGE LTD.’S MOTION TO DISMISS                         PAGE 1
       2.     On July 23, 2014, Plaintiff/Appellant filed a Motion for New Trial. A

written order denying Plaintiff’s Motion for New Trial was signed on December

22, 2014. Plaintiff filed a Notice of Appeal on January 9, 2015.

                         APPELLANT’S APPEAL IS UNTIMELY

       3.     Appellant filed the Notice of Appeal more than six months after final

summary judgment was rendered in favor of Defendant/Appellee and the appeal

should therefore be dismissed as untimely. Generally, a notice of appeal is due

within thirty days after the judgment is signed. See Tex. R. App. P. 26.1. The time

to file a notice of appeal is extended to 90 days after the judgment is signed if,

within 30 days after the judgment is signed, a party files a motion for new trial.

Bonham v. Texas Amer. Title Company, 2014 WL 197755 at *1 (Tex. App. –

Houston [1st Dist.], Jan. 16, 2014, no pet.) (citing TRAP 26.1). If a notice of appeal

is not timely filed, the appellate court lacks jurisdiction to hear the appeal, and the

appeal must be dismissed. Id. Here, final summary judgment was granted on June

23, 2014.1 Plaintiff/Appellant filed a Motion for New Trial on July 23, 2014.

Accordingly, Appellant had until September 22, 2014 to file a Notice of Appeal at




1
  A true and correct copy of the Final Summary Judgment is attached hereto as Exhibit “A” and
incorporated herein for all purposes. A true and correct copy of the Motion for New Trial is
additionally attached as Exhibit “B” and incorporated herein for all purposes. This Court may
take judicial notice of both the date of the Final Summary Judgment and Motion for New Trial.
_____________________________________________________________________________
DEFENDANT LPP MORTGAGE LTD.’S MOTION TO DISMISS                         PAGE 2
the very latest.2 Plaintiff/Appellant did not file his Notice of Appeal in this matter

until January 9, 2015. The present appeal is therefore untimely, and this Court

should dismiss the appeal for want of jurisdiction.

      WHEREFORE, PREMISES CONSIDERED, LPP prays that this Court

dismiss Plaintiff/Appellant’s appeal as untimely and for want of jurisdiction and

for such other and further relief to which LPP may show itself justly entitled.

                                              Respectfully submitted,

                                              GREGG & VALBY, P.C.

                                        by:   /s/ John H. Miller, III
                                              Thomas G. Overbeck
                                              State Bar No. 15353450
                                              John H. “Jack” Miller, III
                                              State Bar No. 24083503
                                              1700 W. Loop South, Suite 200
                                              Houston, TX 77027
                                              Ph: (713) 960-1377
                                              Fax: (713) 960-1809




2
  September 21, 2014 is ninety days from June 23, 2014. However, September 21 fell on a
Sunday. Under Tex. R. Civ. Pro. 4’s mechanism for computing time, the Plaintiff would
therefore have had until Monday, September 22, 2014 to file his Notice of Appeal.
_____________________________________________________________________________
DEFENDANT LPP MORTGAGE LTD.’S MOTION TO DISMISS                         PAGE 3
                         CERTIFICATE OF SERVICE

      I certify that a true and correct copy of the Appellee’s Motion to Dismiss
Appeal as Untimely has been served on Appellant in accordance with Rule 9.5 of
the Texas Rules of Appellate Procedure on the 9th day of February, 2015 by
appropriate electronic service, fax to (713) 595-8201 and/or by deposit into the
care and custody of the United States Postal Service in an envelope addressed to:

                               William A. Baldwin
                               7936 Grove Ridge Dr.
                               Houston, TX 77061


                                                 /s/ John H. Miller, III




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DEFENDANT LPP MORTGAGE LTD.’S MOTION TO DISMISS                         PAGE 4
