THOMAS NORRIS SR v. AIR LIQUIDE AMERICA CORPORATION ET AL (2017)

MEMORANDUM OPINION

Appellant, Thomas L. Norris, Sr., proceeding pro se, attempts to appeal from the trial court's order of dismissal under Texas Civil Practice & Remedies Code section 90.010(d-1), signed on August 31, 2015, by filing a notice of restricted appeal on October 12, 2016.¹ We dismiss this appeal for want of jurisdiction.

Generally, a notice of appeal is due within thirty days after the final judgment is signed. See TEX. R. APP. P. 26.1. To qualify for a restricted appeal, an appellant must establish that: (1) he filed the notice of restricted appeal within six months after the judgment or order appealed from was signed; (2) he was a party to the underlying suit; (3) he did not timely file a post-judgment motion or request for findings of fact and conclusions of law, or notice of appeal; (4) he did not participate, either in person or through counsel, in the hearing that resulted in the judgment complained of; and (5) the trial court erred and the error is apparent from the face of the record. See Bassie v. Citibank (S. Dakota) N.A., No. 01-05-00943-CV, 2006 WL 181514, at *1 (Tex. App.—Houston [1st Dist.] Jan. 26, 2006, no pet.) (per curiam) (mem. op.) (citing, inter alia, TEX. R. APP. P. 30, 26.1(c)).

Here, the first requirement was not met. See Bassie, 2006 WL 181514, at *1. Norris's notice of restricted appeal was due within six months of the August 31, 2015 order, or by February 29, 2016. See TEX. R. APP. P. 26.1(c), 30. Norris's notice of restricted appeal, filed on October 12, 2016, was untimely by over seven months. Without a timely filed notice of appeal, this Court lacks jurisdiction over the appeal. See id. 25.1, 26.1.

On January 10, 2017, the Clerk of this Court notified Norris that this appeal was subject to dismissal for want of jurisdiction unless he timely responded to this notice and showed how this Court had jurisdiction. See TEX. R. APP. P. 42.3(a), (c). After Norris received an extension, he timely filed a response on February 22, 2017. Norris's response includes such documents as a motion to withdraw filed in 2011 by his prior counsel, a notice of intent to dismiss under Section 90.010(d-1), Texas Civil Practice & Remedies Code, signed by the Asbestos MDL Judge on April 10, 2015, and recent correspondence from prospective counsel who may represent him if he becomes sick in the future. However, Norris's response was inadequate to show how this Court has jurisdiction over his appeal.

Accordingly, we dismiss this appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a); 43.2(f). We dismiss any pending motions as moot.

FOOTNOTES

1.   Although the district clerk's letter of assignment lists the order on appeal as signed by the trial court on December 30, 2015, the actual order attached to that letter lists a different asbestos claimant, Jesse F. Stokesberry. According to the clerk's record, the order of dismissal listing appellant as claimant was signed on August 31, 2015. Because appellant is proceeding pro se, we construe the letter of assignment to have included this August 31, 2015 order with appellant's name.

PER CURIAM