Opinion
NO. 01-19-00347-CV
10-03-2019
DANIEL J. SHEA, Appellant v. GERALD DUANE ROLLINS JUNIOR, Appellee and GERALD DUANE ROLLINS JUNIOR, Appellant v. SECOND BAPTIST CHURCH OF HOUSTON, Appellee
On Appeal from the 127th District Court Harris County, Texas
Trial Court Case No. 2017-69277B
MEMORANDUM OPINION
This appeal involves two separate notices of appeal from the final judgment in the underlying case: (1) an April 30, 2019 notice of appeal filed by Daniel Shea as an intervenor listing Shea as appellant and Gerald Duane Rollins Jr. as appellee and (2) a subsequent notice of appeal filed by Rollins on July 3, 2019 listing Rollins as appellant and Second Baptist Church as appellee.
Second Baptist Church has filed a motion to dismiss this appeal for lack of jurisdiction because Rollins's notice of appeal was untimely. We grant the motion in part and dismiss the appeal by Rollins as untimely. See TEX. R. APP. P. 42.3(a), (b). The motion to dismiss is denied with respect to the appeal by Shea. On this Court's own initiative after providing notice to the parties, we dismiss the appeals by both Rollins and Shea for want of prosecution. See TEX. R. APP. P. 42.3(b)
Background
On October 15, 2018, the trial court granted Second Baptist's motion for summary judgment. Because the order did not dispose of all parties and claims, Second Baptist moved to sever Rollins's claims against it. On January 30, 2019, the trial court granted Second Baptist's motion for severance and created Cause No. 2017-69277-B, Gareld Duane Rollins, Jr. v. Second Baptist Church. The severance order provides that it "shall constitute a final judgment in the severed cause, because it disposes of all parties and claims in the severed cause." Rollins timely filed a motion for new trial on March 1, 2019. See TEX. R. CIV. P. 329b(a). Because the trial court did not rule on the motion for new trial, it was overruled by operation of law 75 days after the severance order was signed. See TEX. R. CIV. P. 329b(c).
On April 30, 2019, Rollins's former counsel, Daniel Shea, filed a notice of appeal on his own behalf as an intervener asserting claims against Rollins in the underlying case. Rollins subsequently filed his notice of appeal on July 3, 2019.
Time to Perfect Appeal
Although a notice of appeal generally must be filed within 30 days after the judgment is signed, the time to file a notice of appeal is extended to 90 days after the signing if a party files a timely motion for new trial, motion to modify the judgment, motion to reinstate, or a request for findings of fact and conclusions of law that is either required by the Rules of Civil Procedure or properly considerable by the appellate court. TEX. R. APP. P. 26.1(a). The time to file a notice of appeal may also 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. 10.5(b), 26.3. A motion for extension of time is necessarily implied when an appellant, acting in good faith, files a notice of appeal beyond the time allowed by Rule 26.1, but within the fifteen-day extension period provided by Rule 26.3. See Verburgt v. Dorner, 959 S.W.2d 615, 617-18 (Tex. 1997).
To be timely, motions for new trial and motions to modify, correct, or reform judgments must be filed within 30 days after the judgment or order is signed. TEX. R. CIV. P. 329b (a), (g).
Here, the order granting summary judgment in favor of Second Baptist became a final judgment when the trial court signed the severance order on January 30, 2019. See Avni v. Dosohs I, Ltd., No. 01-15-00459-CV, 2016 WL 2745421, at *1 (Tex. App.—Houston [1st Dist.] May 10, 2016, no pet.) (mem. op.) ("A court may make an otherwise interlocutory order that disposes of all claims against a party final for purposes of appeal by severing the cause and parties disposed of by the order into a different cause."). Rollins's motion for new trial extended the deadline for filing a notice of appeal to 90 days from the signing of the January 30, 2019 order. See TEX. R. APP. P. 26.1(a)(1). Accordingly, the notice of appeal was due on April 30, 2019. See id.
Dismissal of Rollins's Untimely Appeal
Second Baptist has filed a motion to dismiss the appeal for want of jurisdiction because Rollins's July 3, 2019 notice of appeal was untimely filed 64 days after the April 30, 2019 deadline. See TEX. R. APP. P. 26.1(a)(1). In response, Rollins asserts that Shea's notice of appeal sufficiently invokes our appellate jurisdiction to consider Rollins's appeal despite his untimely notice of appeal.
Rollins relies upon Rule 25.1(b) of the Texas Rules of Appellate Procedure, which provides that "The filing of a notice of appeal by any party invokes the appellate court's jurisdiction over all parties to the trial court's judgment or order appealed from." TEX. R. APP. P. 25.1(b). But Rollins's assertion that the filing of a notice of appeal by any party excuses other parties from timely filing a notice of appeal conflicts with the specific text of Rule 26.1(d), which provides that "if any party timely files a notice of appeal, another party may file a notice of appeal within the applicable period stated above [in Rule 26.1] or 14 days after the first filed notice of appeal, whichever is later." TEX. R. APP. P. 26.1(d).
Pursuant to Rule 26.1(d), Shea's April 30, 2019 notice of appeal extended Rollins's deadline to file his notice of appeal to May 15, 2019. Rollins's July 3, 2019 notice of appeal was untimely filed 49 days after this extended deadline and outside of the 15-day time period in which we imply an extension request under Rule 26.3. Absent a timely notice of appeal, this court is without jurisdiction to consider this appeal. See Charette v. Fitzgerald, 213 S.W.3d 505, 509 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (dismissing cross-appeal for lack of jurisdiction because untimely filed 34 days after first notice of appeal); Valerus Compression Servs. v. Reeves Cnty. Appraisal Dist., No. 08-13-00366-CV, 2014 WL 645035, at *1 (Tex. App.—El Paso Feb. 19, 2014, no pet.) (mem. op.) (dismissing cross-appeal for lack of jurisdiction because untimely filed 33 days after first notice of appeal).
To the extent that Rule 25.1(b) provides our court with jurisdiction to consider Rollins's appeal due to Shea's earlier notice of appeal being timely, the rule also provides that it is within our discretion to dismiss the appeal as untimely. See TEX. R. APP. P. 25.1(b) ("Any party's failure to take any other step required by these rules, including the failure of another party to perfect an appeal . . . does not deprive the appellate court of jurisdiction but is ground only for the appellate court to act appropriately, including dismissing the appeal."); see also St. Mina Auto Sales, Inc. v. Al-Muasher, 481 S.W.3d 661, 665-66 (Tex. App.—Houston [1st Dist.] 2015, pet. denied). Accordingly, to the extent that we have jurisdiction, we dismiss Rollins's appeal for failure to file a notice of appeal within the time provided by Rule 26.1(d). See Harris Cnty. v. Norris, 240 S.W.3d 255, 261 (Tex. App.—Houston [1st Dist.] 2006, pet. denied) (dismissing cross-appeal as untimely under Rule 26.1(d) because notice of appeal filed more than 14 days after first notice of appeal).
Accordingly, we dismiss Rollins's appeal because his notice of appeal was untimely. The notice of appeal filed by Shea, however, was timely and not subject to dismissal on this basis. Thus, Second Baptist Church's motion to dismiss is denied as to the appeal filed by Shea. However, as discussed below, we dismiss the appeal by Shea on other grounds.
Dismissal for Want of Prosecution
Although Shea's notice of appeal was timely filed, neither Shea nor Rollins has established indigence or paid, or made arrangements to pay, the fee for preparing the clerk's record. See TEX. R. APP. P. 37.3(b). After being notified that this appeal was subject to dismissal, the parties failed to respond. See TEX. R. APP. P. 37.3(b), 42.3(b). Accordingly, we dismiss the appeal for want of prosecution.
Conclusion
For the foregoing reasons, we dismiss the appeal. Any pending motions are dismissed as moot.
PER CURIAM Panel consists of Justices Lloyd, Goodman, and Landau.