Posted on December 17, 2008 by Nikaa Jordan

The Ninety-Day Rule Strikes Again: Untimely Appeal Dismissed

In McAfee v. Garrison, No. 2070857, released December 12, the Court of Civil Appeals dismissed an appeal as untimely where the father’s notice of appeal was not filed within 42 days of the denial of his post-judgment motions as a matter of law.

The trial court entered a judgment on January 10, 2008 modifying the custody provisions of a divorce decree. The father filed a timely motion to alter, amend, or vacate on January 25, 2008 and the trial court purported to enter an order denying the father’s postjudgment motion on May 1, 2008. The father filed his notice of appeal on June 6, 2008.

Although filed within 42 days of the trial court’s purported denial of his postjudgment motion, the father’s notice of appeal was untimely. As Rule 59.1 provides, no post-judgment motion shall remain pending in the trial court for more than ninety days. If the trial court fails to dispose of such motions within that time, they are deemed denied by operation of law. 

Here, the father’s postjudgment motion was denied by operation of law on April 24, 2008 and the trial court was without jurisdiction to enter the May 1, 2008 order from which the father calculated his time to file a notice of appeal. Because the notice of appeal was filed more than      forty-two days from the date his postjudgment motion was denied by operation of law, the father’s appeal was due to be dismissed.
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