David M. Conklin, Appellant v. Henrietta Wright, Appellee (2016)

MEMORANDUM OPINION

This is an attempted appeal from a trial court order, signed March 6, 2015.  Because the notice of appeal was untimely filed, we dismiss the appeal for want of jurisdiction.

Appellant, David M. Conklin, filed suit against Henrietta Wright, a correctional officer at the Texas Department of Criminal Justice, in her individual capacity, claiming confiscation of his property.  After answering, Wright filed a motion to declare Conklin a vexatious litigant and to order him to provide security in accordance with section 11.051 of the Texas Civil Practice & Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 11.051 (West 2002).  On November 24, 2014, the trial court signed an order finding Conklin to be a vexatious litigant and ordering Conklin to file security in the amount of $2,500 with the Harris County District Clerk on or before December 15, 2014 or the court would dismiss the cause.  Conklin filed an affidavit of indigence and claimed he was unable to post security.

On March 6, 2015, the trial court signed an order of dismissal.  In the order, the trial court first stated that Conklin was indigent and unable to post security, but that the order adjudicating him to be a vexatious litigant remained effective.  The trial court further addressed whether Conklin's claim was frivolous or malicious under section 14.003(a)(2) & (3) of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a)(2), (3) (West 2002).

Chapter 14 of the Texas Civil Practice and Remedies Code concerns inmate litigation and section 14.003 provides for dismissal of claims if the trial court finds either that the inmate's allegation of poverty is false, that the claim is frivolous or malicious, or that the required affidavit or unsworn declaration is false.  See Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a). The affidavit or unsworn declaration must list and identify every action the pro se inmate has filed, describe the operative facts, and whether it was found to be frivolous or malicious. See Tex. Civ. Prac. & Rem. Code Ann. § 14.004(a) (West Supp. 2015).

In reviewing Conklin's affidavits regarding previous litigation, the trial court found:

[T]he Court has determined that [the affidavits] fail to state sufficient operative facts for which relief was sought, fail to identify each party named in the action, and fail to state the result of the action, including whether the action was dismissed as frivolous or malicious.  Therefore, they are insufficient to meet the requirements of section 14.004. Without the required information, the Court is unable to consider whether his current claims are substantially similar to those presented in previous claims.  In the absence of such information the Court is entitled to assume this suit is substantially similar to ones previously filed by Mr. Conklin, and [therefore], frivolous.

The trial court then dismissed the case.

Although Conklin had filed a “motion to reverse” in January 2015, challenging the order finding him to be a vexatious litigant, he did not file a postjudgment motion challenging the dismissal under Chapter 14.  Thus, the notice of appeal was due 30 days after the trial court signed the judgment on March 6, 2015.  On June 15, 2015, Conklin filed a document, entitled “Memorandum of Law,” which requested relief from the court of appeals.  We construe this to be his notice of appeal, but it was filed more than 60 days after the judgment was signed, and is untimely.  See Tex. R. App. P. 26.1 (notice of appeal due within 30 days after judgment is signed if no post-judgment motions are timely filed).

Within his notice of appeal, Conklin also stated he had not received any notices from the Harris County District Clerk since May 2014, when Wright filed a motion to declare Conklin a vexatious litigant.  But, even if Conklin did not receive timely notice of the subsequent March 2016 judgment, his remedy was to follow the procedure outlined in Rule 306a.  Rule 306a(4) provides that, if within twenty days after the final judgment is signed, a party has neither received notice of the judgment nor acquired actual knowledge of it, then the period for filing post-judgment motions may be extended.  See Tex. R. Civ. P. 306a(4).  The deadline for filing the notice of appeal will run from “the earlier of the date when the party receives notice or acquires actual knowledge of the signing” of the final judgment, but the deadline will not be extended more than 90 days after the judgment was signed.  Tex. R. App. P. 4.2(a)(1).

To gain this additional time for filing a notice of appeal, a party must follow the procedure in Rule 306a(5), which requires a party “to prove in the trial court, on sworn motion and notice, the date on which the party or his attorney first either received a notice of the judgment or acquired actual knowledge of the signing and that this date was more than twenty days after the judgment was signed.”  Tex. R. Civ. P. 306a(5).  Conklin did not follow the procedure in Rule 306a(5) to gain additional time to file his notice of appeal.

On February 23, 2016, we issued notice to Conklin of our intent to dismiss the appeal for want of jurisdiction, unless he responded by March 4, 2016, providing an explanation with authority to show that this Court has jurisdiction.  See Tex. R. App. P. 42.3(a).  Conklin filed no response.

Without a timely filed notice of appeal, we have no jurisdiction over the appeal.  Tex. R. App. P. 25.1(b).  Accordingly we dismiss the appeal for want of jurisdiction.

PER CURIAM