Opinion
NO. 01-16-00613-CV
11-29-2016
DOREATHA WALKER, Appellant v. SAFARI KIDS LEARNING CENTER, Appellee
On Appeal from the 269th District Court Harris County, Texas
Trial Court Case No. 2015-57309
MEMORANDUM OPINION
Appellant, Doreatha Walker, proceeding pro se, attempts to appeal from the order granting the appellee's motion for summary judgment, signed on May 13, 2016. We dismiss this appeal for want of jurisdiction.
This Court only has jurisdiction over final, appealable judgments or appealable interlocutory orders. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 51.012, 51.014(a)(1)-(12) (West Supp. 2016); Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex. 1998). "A judgment is final 'if and only if either it actually disposes of all claims and parties then before the court, regardless of its language, or it states with unmistakable clarity that it is a final judgment as to all claims and all parties.'" In re Vaishangi, Inc., 442 S.W.3d 256, 259 (Tex. 2014) (quoting, inter alia, Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192-93 (Tex. 2001)). The trial court's May 13, 2016 order granting the motion for summary judgment by the appellee, Safari Kids Learning Center ("SKLC"), was a final judgment because it actually disposed of all claims and parties then before the court as it dismissed all of Walker's claims against SKLC, the only defendant. See id.; see also Lehmann, 39 S.W.3d at 192-93, 206.
Generally, a notice of appeal is due within thirty days after the final judgment is signed. See TEX. R. APP. P. 26.1. The deadline to file a notice of appeal is extended to ninety days after the date the judgment is signed if, within thirty days after the judgment is signed, any party timely files a motion for new trial, motion to modify the judgment, motion to reinstate, or, under certain circumstances, a request for findings of fact and conclusions of law. See id. 26.1(a); TEX. R. CIV. P. 329b(a), (g). To be considered timely, any request for findings and conclusions must be filed within twenty days after the date the judgment was signed, whereas a motion for new trial must be filed within thirty days after the judgment is signed. TEX. R. CIV. P. 296, 329b(a).
Background
The trial court signed the final judgment dismissing Walker's lawsuit on May 13, 2016, making June 13, 2016, the deadline for filing a notice of appeal. See TEX. R. APP. P. 26.1. Walker did not file her notice of appeal in the trial court until August 4, 2016, which was eighty-three days after the judgment was signed. Walker neither filed a motion for extension of time to file the notice of appeal, nor can one be implied because the notice of appeal was untimely filed. See TEX. R. APP. P. 26.3(b); Verburgt v. Dorner, 959 S.W.2d 615, 617-18 (Tex. 1997). Thus, Walker's appeal would be untimely unless she had timely filed a post-judgment request or motion. See TEX. R. APP. P. 26.1(a); TEX. R. CIV. P. 296, 329b(a).
On September 20, 2016, Walker filed her pro se appellant's brief in this Court briefly contending that this Court has jurisdiction because she did not receive notice of SKLC's motion for summary judgment. Walker's brief states that, among other things, her lawsuit had raised three claims: (1) violation of the Payday Act; (2) breach of contract; and (3) constructive and wrongful discharge. Walker also asserts that she was forced to resign on September 18, 2015, after having worked for SFLC for about two months since the latter part of July 2015.
On September 29, 2016, SFLC filed its appellee's brief claiming, among other things, that Walker's "Motion for Rehearing Findings of Fact and Conclusions of Law" (hereinafter "Motion for Rehearing") was improperly filed without a notice of hearing and untimely filed on June 17, 2016, because it should have been filed by June 2, 2016. Thus, SFLC contends that Walker's untimely Motion for Rehearing rendered her August 4, 2016 notice of appeal untimely, and that we should dismiss this appeal for want of jurisdiction.
On October 6, 2016, the Clerk of this Court sent a notice of intent to dismiss for want of jurisdiction notifying Walker that the "mailbox" rule did not appear to apply to her Motion for Rehearing because her cover letter with that motion stated that the motion was hand delivered on June 17, 2016. See TEX. R. APP. P. 9.2(b). The Clerk's notice also warned Walker that her appeal was subject to dismissal unless she timely responded and showed how this Court had jurisdiction over this appeal. See id. 42.3(c).
Walker timely filed a response on October 10, 2016, contending that the "mailbox" rule should apply to make her Motion for Rehearing, and by extension, her appeal timely. Walker asserts that, despite what the clerk's record states and what she wrote on the cover letter with that motion, she did not hand deliver her Motion for Rehearing. Instead, Walker claims that she mailed her motion on June 15, 2016, and she included a postage-paid priority mail receipt as proof.
However, Walker's response does not adequately show that this Court has jurisdiction over her appeal. According to the clerk's record, filed in this Court on August 23, 2016, there was no written order ruling on Walker's Motion for Rehearing, and it was untimely if construed as a request for findings of fact and conclusions of law because any such request must be filed within twenty days after the date the May 13, 2016 judgment was signed, which was June 2, 2016. See TEX. R. CIV. P. 296. Because this request for findings was not filed timely, the trial court was not required to make findings and conclusions, and it did not extend appellant's deadline for filing the notice of appeal. See Cartmill v. Cartmill, No. 14-06-00583-CV, 2006 WL 2164721, at *1-2 (Tex. App.—Houston [14th Dist.] Aug. 3, 2006, pet. denied) (per curiam) (mem. op.) (denying appellant's motion for extension of time to file notice of appeal because request for findings and conclusions was untimely, trial court was not required to rule on it, and notice of appeal was filed beyond fifteen-day extension period).
Similarly, even if Walker's Motion for Rehearing is construed as a motion for new trial, this motion was also untimely because any such motion must be filed within thirty days after the judgment was signed on May 13, 2016, which was June 13, 2016. See TEX. R. CIV. P. 329b; TEX. R. APP. P. 4.1(a). "Under the mailbox rule, a document is deemed timely filed if it is sent to the proper clerk by first-class mail in a properly addressed, stamped envelope on or before the last day for filing and is received not more than ten days beyond the filing deadline." Glover v. Berleth, No. 01-09-00679-CV, 2012 WL 114200, at *2 (Tex. App.—Houston [1st Dist.] Jan. 12, 2012, no pet.) (mem. op.) (citing TEX. R. APP. P. 9.2(b)).
Although this Court may consider other proof, this Court will accept four types of proof of the date of mailing, with the only one that could apply here being a receipt for registered or certified mail if the receipt is endorsed by the United States Postal Service. TEX. R. APP. P. 9.2(b)(2). Even assuming arguendo that the "mailbox" rule applies and we accepted Walker's postage-paid priority mail receipt as other proof of mailing that her Motion for Rehearing was mailed on June 15, 2016, that motion was untimely. See id. To be timely, Walker's Motion for Rehearing had to be deposited in the mail by June 13, 2016, thirty days after the May 13, 2016 judgment was signed. See TEX. R. CIV. P. 329b(a); TEX. R. APP. P. 4.1(a), 9.2(b)(1)(C).
The trial court did not have to consider or rule on Walker's untimely motion for new trial, which also did not extend the deadline for filing her notice of appeal, which remained June 13, 2016. See, e.g., Stroman v. Martinez, No. 01-14-00991-CV, 2015 WL 1926015, at *1 (Tex. App.—Houston [1st Dist.] Apr. 28, 2015, no pet.) (per curiam) (mem. op.) (granting appellee's motion to dismiss for want of jurisdiction because untimely motion for rehearing and new trial did not extend deadline for filing notice of appeal) (citation omitted); Powell v. Linh Nutrition Programs, Inc., No. 01-03-00919-CV, 2005 WL 375334, at *1 (Tex. App.—Houston [1st Dist.] Feb. 17, 2005, no pet.) (mem. op.) (holding that deadline for appealing from trial court's order denying motion for new trial runs from date of signing of final judgment, not from date of order denying motion for new trial); see also Coffee v. Coffee, No. 03-16-00466-CV, 2016 WL 4272122, at *1 & n.1 (Tex. App.—Austin Aug. 11, 2016, no pet.) (per curiam) (mem. op.) (dismissing appeal for want of jurisdiction because district court did not need to consider untimely motion for new trial, making notice of appeal untimely).
Walker untimely filed her notice of appeal on August 4, 2016. See TEX. R. APP. P. 26.1. Without a timely filed notice of appeal, this Court lacks jurisdiction over the appeal. See id. 25.1.
Conclusion
Accordingly, we dismiss this appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a); 43.2(f). We dismiss any pending motions as moot.
PER CURIAM Panel consists of Justices Keyes, Higley, and Lloyd.