DISMISS and Opinion Filed April 9, 2021 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-20-00537-CV 

NAIL ROAD 1, L.P., Appellant 

V. 

DALLAS COUNTY, TEXAS, Appellee 

On Appeal from the 160th Judicial District Court 

Dallas County, Texas 

Trial Court Cause No. DC-18-17321 

MEMORANDUM OPINION 

Before Justices Osborne, Pedersen, III, and Nowell 

Opinion by Justice Osborne 

This appeal challenges the trial court’s order denying appellant’s motion to 

reinstate the underlying suit, which appellant voluntarily nonsuited. Because the 

notice of appeal was not timely filed, we dismiss the appeal for want of jurisdiction. 

See TEX. R. APP. P. 42.3(a). 

To ensure simplicity and certainty in determining the time for perfecting an 

appeal, the Texas Rules of Appellate Procedure calculate the deadline for filing a 

notice of appeal from the date the final judgment is signed. See TEX. R. APP. P. 26.1; 

Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001) (“Simplicity and 
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certainty in appellate procedure are nowhere more important than in determining the 

time for perfecting appeal.”). When a post-judgment motion such as a motion to 

reinstate or motion for new trial is filed, the deadline is ninety days, or with an 

extension motion 105 days, from the date the judgment is signed. See id. 26.1(a), 

26.3. An order denying a post-judgment motion such as a motion to reinstate or 

motion for new trial is not separately appealable from the final judgment and does 

not start the appellate timetable. See Jarrell v. Bergdorf, 580 S.W.3d 463, 465 (Tex. 

App.—Houston [14th Dist.] 2019, no pet.). 

The notice of appeal here was filed within thirty days of the order denying the 

motion to reinstate but 124 days after the order of nonsuit. Because the notice of 

appeal appeared untimely, we questioned our jurisdiction over the appeal and 

directed the parties to file letter briefs addressing our concern. See Brashear v. 

Victoria Gardens of McKinney, L.L.C., 302 S.W.3d 542, 545 (Tex. App.—Dallas 

2009, no pet.) (timely filing of notice of appeal is jurisdictional). 

Appellant argues in its jurisdictional brief that because the underlying suit was 

voluntarily nonsuited, the operative order is the order denying reinstatement and the 

deadline for filing the notice of appeal was the date the trial court’s plenary 

jurisdiction over the case expired–-thirty days after the order denying reinstatement 

was signed. See TEX. R. CIV. P. 329b(e) (trial court retains plenary power over case 

for thirty days after all post-judgment motions are overruled by operation of law or 

written order, whichever occurs first). Appellant appears to reason that the order 
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denying reinstatement should trigger the appellate deadlines because that is the basis 

for the appeal, not the voluntary nonsuit. 

Having an appellate deadline unique to appeals that follow voluntary nonsuits 

affords no certainty or simplicity. As noted above and argued by appellee in its 

responsive letter brief, the appellate rules expressly provide the deadline runs from 

the signing of the judgment, not the order denying the post-judgment motion. See 

TEX. R. APP. P. 26.1; Jarrell, 580 S.W.3d at 465. 

As the notice of appeal here was not filed within 105 days of the signing of 

the judgment–-the order of nonsuit, it was not timely, and we lack jurisdiction over 

the appeal. See Brashear, 302 S.W.3d at 545. Accordingly, we dismiss the appeal. 

See TEX. R. APP. P. 42.3(a). 

200537F.P05 

 

/Leslie Osborne/ 

LESLIE OSBORNE 

JUSTICE 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

NAIL ROAD 1, L.P., Appellant 

No. 05-20-00537-CV V. 

DALLAS COUNTY, TEXAS, 

Appellee 

 On Appeal from the 160th Judicial 

District Court, Dallas County, Texas 

Trial Court Cause No. DC-18-17321. 

Opinion delivered by Justice 

Osborne, Justices Pedersen, III and 

Nowell participating. 

 In accordance with this Court’s opinion of this date, we DISMISS the appeal. 

 We ORDER that appellee Dallas County, Texas recover its costs, if any, of 

this appeal from appellant Nail Road 1, L.P. 

Judgment entered April 9, 2021.