NO. 07-05-0324-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL B OCTOBER 21, 2005

______________________________ DEW AYNE FRY, APPELLANT

V. GOODPASTURE, LTD ., APPELLEE

_________________________________ FROM THE 69 TH DISTRIC T COURT O F DALLAM CO UNTY; NO. 10076; HON ORABLE RON E NNS, JUDG E

_______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. MEMORA NDUM OPIN ION Appellant

Deway ne Fry

appeals a summary

judgment aga inst him in a suit filed by Goodpasture, Ltd. We dismiss for lack of juri sdiction. BACKGROUND On May 26, 2005, su mmary judg ment was g ranted in favor of appellee Goodpasture, Ltd. in cause number 10076 in the 69th Distric t Court of Dall am County (t he trial court). On June 27, 2005, appel lant filed a Mot ion for New Trial w hich was overrule d1 Further reference to a rule of appellate pr ocedure wi ll be by r

eference to “TRAP_.” 2 by operation of la w. On Septem ber 14, 2005, appel lant filed a Not ice of Appeal and a Motion to Fi le Notice of Appeal Out of Time. Pursuant to T EX . R. A PP . P. 42.3, 1 we notified the partiesthat we would consider this court’s jurisdic

tion over the appeal and directed that, on or before Octobe r 10, 2005, the parties submit any b riefs or other matters they wi shed to be considered on the jurisd iction question. N o response has be en received. LAW In a civil case, appeal is perfected by timely filing a notice of ap peal. TRAP 25.1(a). To be ti mely, notice of direc t appeal must be filed w ithin 30 days after the judg ment being appealed from is signed, with certain exceptions. TRA P 26. 1. As relates to the matter before us, an exception exists when any party timely files a motio n fo r new trial. TRAP 26.1(a)(1). In such situation, the notice of appeal must be filed within 90 da ys after the judgment is s igned. TRAP 26.1(a). The time for filing a n otice of appeal may be extended fo r 15 days under certain circumstances. TRAP 26.3. Once t he period for g ranting a moti on for ext ension of time has passed, however, a par ty’s attempt

to a ppeal wil l not invoke the appellate court's jurisdict ion to determine the merits of the appeal. See Verburgt v . Dorner , 959 S.W.2d 615, 617 (Tex. 1997)

(interpret ing former

TRAP 41(a)(2) ). If notice of appeal i s not filed time ly, the a ppe llat e cou rt’s j urisd ictio n is in voked only t o the ext en t that the court may3

determine its lack of

jurisdiction and dismiss the appeal. See In re Simpson , 932 S.W.2d 674, 679 (Tex.App.–A marillo 1996, no writ) . Any other action taken by a court wi thout jurisdict ion is a nulli ty. See id .; In re Frost , 815 S.W.2d 890, 892 (Tex.App.–Amarillo 1991, no writ) (when acourt lack

s jurisdi ction, any action taken is void). Accordingly, courts must address questionsof jurisdict ion both sua sponteand when rai sed by the parties. Buffalo Royalty Corp. v. Enron Corp ., 906 S.W.2d 275, 277 (Tex.App.–Amar illo 1995, no w rit). ANALYSIS The trial court’s summary judg ment, signed on May 26, 2005, dispose d of all parties and issues . App ella nt ti mely f iled a mot ion f or ne w trial . His n otic e ofappe al, h oweve r , was filed on September 14, 20 05. That date was not within either the 90- day period after the judgment was signed, or wit hin the subseq uent 15-day period for which an extension of time to file the n otice of appeal could have been granted. See TRAP 26.1(a)( 1), TRAP 26.3; Verburgt , 959 S.W.2d at 617. As the no tice of appeal was not timely filed, our jurisdict ion was not

invoked to consider the merits of the appeal.

CONCLUSION B ecause appellant did not timely file his notice of appeal, our jurisdiction has no t been invoked a nd we must di smiss the appeal . TRAP 39.8, 43.2(f).

Mackey K. Hancock Justice