Opinion
01-23-00178-CV
06-25-2024
Jennifer Cook v. Memorial Hermann Hospital System
Trial court: 61st District Court of Harris County Trial court case number: 2022-39272
ORDER
Veronica Rivas-Molloy Judge
Notice of Appeal
Appellant Jennifer Cook filed a notice of appeal from the trial court's November 29, 2022 Order Granting [Appellee Memorial Hermann Hospital System's] Motion to Dismiss. Appellant filed a timely Motion for New Trial in the trial court. Appellant's notice of appeal was thus due within 90 days after the challenged order was signed, or by February 27, 2023. See Tex. R. App. P. 26.1 (requiring notice of appeal to be filed within thirty days after judgment is signed or ninety days after judgment is signed if party timely files motion for new trial). The time to file a notice of appeal may be extended if, within fifteen days after the deadline to file the notice of appeal, a party properly files a motion for extension. See Tex. R. App. P. 26.1, 26.3; Verburgt v. Dorner, 959 S.W.2d 615, 617-18 (Tex. 1997). Without a timely filed notice of appeal, this Court lacks jurisdiction over an appeal. See Tex. R. App. P. 25.1.
Appellant did not file her notice of appeal until March 7, 2023. Although Appellant filed her notice of appeal within the 15-day grace period allowed by Rule 26.3, she did not file a motion for extension of time. A motion for extension of time is necessarily implied when an appellant, acting in good faith, files a notice of appeal beyond the time permitted under Rule 26.1, but within the 15-day grace period provided by Rule 26.3. See Verburgt, 959 S.W.2d at 617. Appellant, however, must still offer a reasonable explanation for failing to file her notice of appeal in a timely manner. Tex.R.App.P. 10.5(b)(1)(C), 26.3; see also Jones v. City of Houston, 976 S.W.2d 676, 677 (Tex. 1998) (parent); In re A.J.U., No. 01-16-00371-CV, 2016 WL 3946925, at *1 (Tex. App.-Houston [1st Dist.] July 19, 2016, no pet.) (mem. op.) (same).
Appellant is thus directed to provide in writing, within 10 days of the date of this order, a reasonable explanation for her failure to file her notice of appeal in a timely manner. Failure to respond by the stated deadline may result in dismissal of the appeal. See TEX. R. APP. P. 42.3(a), (c); In re A.J.U., 2016 WL 3946925, at *1.
Motions for Extension to File Brief
Appellant's brief was originally due on May 4, 2023. Appellant filed a motion for extension of time in which to file her brief seeking an extension of thirty days. This Court granted the motion extending Appellant's deadline to file her brief to June 5, 2023.
Appellant did not file her brief on the due date. Instead, on June 5, 2023, Appellant filed a second motion for extension requesting another extension of thirty days. We again granted Appellant an extension of time to file her brief, this time to July 5, 2023.
Appellant again failed to file her brief. On July 5, 2023, Appellant filed a third motion for extension, "requesting] a final, additional thirty . . . days" to file her brief. We again granted Appellant an extension of time to file her brief, this time to August 7, 2023, informing her that "no further extensions" would be granted.
On August 7, 2023, Appellant filed yet a fourth motion for extension of time to file a brief, asking for an "emergency . . . 5-day extension of time to access [the] clerk's record and to file Appellant's opening brief."
On August 10, 2023, this Court abated and referred this appeal to mediation. The parties did not settle and on February 13, 2024, we lifted the abatement and reinstated the appeal, directing Appellant to file her brief within forty-five days, making her brief due on March 29, 2024.
On April 22, 2024, we sent Appellant a letter informing her that her brief was past due and stating that her appeal could be dismissed for want of prosecution unless, within ten days of our order, she filed her brief or a motion to extend the time to file her brief. Appellant did not file a timely response to the letter. Instead, on June 17, 2024, Appellant filed a fifth motion for extension to file her brief on the ground that a "paralegal handling this case quit without [either] calendaring the deadline []or . . . informing] [Appellant[] . . . that a late notice had been served on April 22, 2024 [and] calendaring] the deadline to respond." Appellee objected and moved to "dismiss [Appellant's] . . . appeal for want of prosecution."
This court has granted Appellant more than a year worth of extensions. Appellant has a duty to prosecute her case once filed. Appellant is granted one last extension of 20 days to file her appellate brief, making her brief due on Monday, July 15, 2024 No further extensions will be granted
This appeal may be dismissed for want of prosecution, without further notice, if Appellant does not file her brief by July 15, 2024 See Tex R. App P. 38.6(d), 38 8(a)(1)
It is so ORDERED.