Court of Civil Appeals Dismisses Appeal as Untimely Where Trial Court Failed to Enter Order into SJIS

In Dulaney v. Dulaney, released last week by the Court of Civil Appeals, the court held that the mother’s notice of appeal was untimely filed even though the trial court failed to enter the order into SJIS and she did not otherwise have notice of it.

On August 26, 1994, the trial court entered a judgment for upaid child support in favor of the mother.  On February 10, 2008, the mother moved the trial court to revive the 1994 judgment.  On February 20, the trial court denied her motion.  On March 3, the mother filed a Rule 59(e) motion to alter, amend, or vacate the trial court’s judgment. 

That motion was denied on May 5, but the trial court did not enter that order into the SJIS and did not notify the mother of the entry of the order.  The mother’s attorney contacted the clerk’s office on several occasions and was told each time that the matter was still under advisement.  On August 22, the mother discovered the existence of the May 5 order.  

On August 25, the mother filed a Rule 60(b) motion for relief from the judgment and, alternatively, a motion to reconsider the denial of her Rule 59(e) postjudgment motion.  On September 2, the trial court purported to grant the mother’s motion to reconsider, but it denied her Rule 60(b) motion for relief from the judgment.  On October 14, the mother appealed.  The father filed a motion to dismiss the mother’s appeal as untimely. 

The Court of Civil Appeals dismissed the appeal as untimely, reasoning that because the trial court did not enter the order denying the mother’s postjudgment motion into SJIS, that motion was denied by operation of law on the 90th day following the filing of the motion.  The mother had 42 days from that date, i.e., until July 15 to appeal. As the mother’s notice of appeal was not filed until October 14, it was untimely. 

The Court of Civil Appeals also noted that the filing of the mother’s Rule 60(b) motion on August 25 did not affect the timeliness of her appeal, pointing out that the lack of notice from the clerk’s office is not a ground for relief under Rule 60(b)