Summary
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
Summary of this case from Salazar v. Secot, Inc.Opinion
NO. 01-14-00991-CV
04-28-2015
LEROY STROMAN, Appellant v. ROXANN MARTINEZ, BRAZORIA COUNTY, BRAZORIA COUNTY EMERGENCY SERVICES DISTRICT #1, BRAZORIA COUNTY EMERGENCY SERVICES DISTRICT #2, CITY OF WEST COLUMBIA, COLUMBIA-BRAZORIA INDEPENDENT SCHOOL DISTRICT, PORT FREEPORT, SPECIAL ROAD AND BRDIGE DISTRICT, WEST BRAZORIA COUNTY DRAINAGE DISTRICT #11, AND RO'VIN GARRETT, BRAZORIA COUNTY TAX ASSESSOR, COLLECTOR, Appellees
On Appeal from the 412th District Court Brazoria County, Texas
Trial Court Case No. 73110
MEMORANDUM OPINION
Appellant, Leroy Stroman, attempts to appeal from the trial court's judgment signed July 21, 2014. Appellee, Roxann Martinez, has filed a motion to dismiss the appeal for want of jurisdiction. We grant Martinez's motion and dismiss the appeal.
Generally, a notice of appeal is due within thirty days after the 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 files a motion for new trial, motion to modify the judgment, or motion to reinstate. Id.; see TEX. R. CIV. P. 329b(a), (g). The time to file a notice of appeal also 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. 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 TEX. R. APP. P. 26.1, 26.3; Verburgt v. Dorner, 959 S.W.2d 615, 617-18 (Tex. 1997).
Here, the trial court signed the final judgment on July 21, 2014. A motion for new trial was due by August 20, 2014. The record reflects that Stroman untimely filed his motion for rehearing and new trial, and to set aside grant of summary judgment on August 22, 2014. Because it was not filed timely, Stroman's motion did not extend the deadline for filing the notice of appeal. Appellant's notice of appeal remained due by August 20, 2014, or by September 4, 2014, with a fifteen-day extension. See TEX. R. APP. P. 26.1(a)(1), 26.3. And, even if the motion were timely filed, Stroman's notice of appeal was due no later than October 20, 2014, or November 4, 2014, with a fifteen-day extension. TEX. R. APP. P. 4.1(a), 26.1, 26.3; see TEX. R. CIV. P. 329b(g). Stroman untimely filed his notice of appeal on December 11, 2014.
The record does not indicate that the "mailbox" rule is applicable in this case. See TEX. R. APP. P. 9.2(b).
Without a timely filed notice of appeal, this Court lacks jurisdiction over the appeal. See TEX. R. APP. P. 25.1. Accordingly, we grant Martinez's motion and dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 43.2(f). We dismiss any other pending motions as moot.
PER CURIAM Panel consists of Justices Jennings, Higley, and Huddle.