Opinion
01-22-00659-CV
12-01-2022
JESUS TORRES AND DANIEL OPARANI, Appellants v. CHENIERE ENERGY, INC., SABINE PASS LNG, L.P., SABINE PASS LNG-GP, LLC, AND SABINE PASS LIQUEFACTION, LLC, Appellees
On Appeal from the 269th District Court Harris County, Texas Trial Court Case No. 2020-47657
Panel consists of Chief Justice Radack and Justices Countiss and Rivas-Molloy.
MEMORANDUM OPINION
PER CURIAM.
Appellants, Jesus Torres and Daniel Oparani, proceeding pro se, each filed a notice of appeal from the trial court's May 27, 2022 final judgment. On September 30, 2022, appellees, Cheniere Energy, Inc., Sabine Pass LNG, L.P., Sabine Pass 1 LNG-GP, LLC, and Sabine Pass Liquefaction, LLC (collectively, "appellees"), filed a motion to dismiss Torres's and Oparani's appeals for lack of jurisdiction.
We grant appellees' motion and dismiss the appeals for lack of jurisdiction.
Any party "seek[ing] to alter the trial court's judgment" must timely file a notice of appeal. Tex.R.App.P. 25.1(c). If a party fails to timely file a notice of appeal, we have no jurisdiction to address the merits of that party's appeal. See Tex. R. App. P. 25.1(b); In re K.L.L., 506 S.W.3d 558, 560 (Tex. App.-Houston [1st Dist.] 2016, no pet.) (without timely notice of appeal, appellate court lacks jurisdiction over appeal); Brashear v. Victoria Gardens of McKinney, L.L.C., 302 S.W.3d 542, 545-46 (Tex. App.-Dallas 2009, no pet.) (timely filing of notice of appeal is jurisdictional prerequisite).
Generally, a notice of appeal is due within thirty days after the trial court signs its judgment. See Tex. R. App. P. 26.1. The deadline to file a notice of appeal is extended to ninety days after the judgment is signed if, within thirty days after the judgment is signed, a 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 Tex. R. App. P. 26.1(a); see also Tex. R. Civ. P. 329b. 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 files a notice of appeal and a 2 motion for extension of time to file a notice of appeal that complies with Texas Rule of Appellate Procedure 10.5(b). See Tex. R. App. P. 10.5(b), 26.3.
Here, the trial court signed the final judgment on May 27, 2022. Torres and Oparani then timely filed a motion for new trial on June 27, 2022. See Tex. R. Civ. P. 4 ("Computation of Time"), 329b(a). Accordingly, any notice of appeal was due to be filed on or before August 25, 2022. See Tex. R. App. P. 26.1(a)(1). Torres filed his notice of appeal on September 9, 2022. Oparani filed his notice of appeal on September 16, 2022. Neither Torres nor Oparani filed a motion for extension of time to file a notice of appeal, and both notices of appeal were filed after the August 25, 2022 deadline. See Tex. R. App. P. 10.5(b), 26.3.
Although neither Torres nor Oparani filed a motion for extension of time to file a notice of appeal when they filed their notices of appeal, 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 Texas Rule of Appellate Procedure 26.1, but within the fifteen-day extension period provided by Texas Rule of Appellate Procedure 26.3, and the appellant reasonably explains the need for an extension of time. Tex.R.App.P. 26.1, 26.3; Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997); 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.). 3
Here, Oparani did not file his notice of appeal within the fifteen-day extension period provided by Texas Rule of Appellate Procedure 26.3; thus, a motion for extension of time to file his notice of appeal cannot be implied as to his appeal, and his notice of appeal remains untimely filed. See Naaman v. Grider, 126 S.W.3d 73, 74 (Tex. 2003); FJR Sand, Inc. v. Essez Ins. Co., No. 01-16-00441-CV, 2016 WL 7104022, at *1 (Tex. App.-Houston [1st Dist.] Dec. 6, 2016, no pet.) (mem. op.); Mallory v. W. Bellfort Prop. Owners Ass'n, No. 01-14-00936-CV, 2015 WL 4138755, at *2 (Tex. App.-Houston [1st Dist.] July 9, 2015, no pet.) (mem. op.) ("[Appellant's] notice of appeal was filed on November 20, 2014, which was one day past the fifteen-day extension window ending on November 19, 2014. Because the notice of appeal was untimely filed, a motion for extension of time to file the notice of appeal cannot be implied." (internal quotations omitted)); see also Cartmill v. Cartmill, No. 14-06-00583-CV, 2006 WL 2164721, at *1 (Tex. App.-Houston [14th Dist.] Aug. 3, 2006, pet. denied) (mem. op.) ("Once the fifteen-day extension period for filing a notice of appeal has passed without filing a notice of appeal, a party can no longer invoke the appellate court's jurisdiction."). Because Oparani's notice of appeal was not timely filed, this Court lacks jurisdiction over Oparani's 4 appeal, and it must be dismissed. See Tex. R. App. P. 25.1(b); In re K.L.L., 506 S.W.3d at 560.
On October 6, 2022, the Clerk of this Court notified Oparani that his appeal was subject to dismissal for lack of jurisdiction unless, by October 17, 2022, Oparani filed a written response demonstrating that this Court has jurisdiction over his appeal. See Tex. R. App. P. 4.1 ("Computing Time"), 42.3(a). Oparani did not adequately respond to the notice.
Torres, however, filed his notice of appeal within the fifteen-day extension period provided by Texas Rule of Appellate Procedure 26.3; thus, a motion for extension of time to file his notice of appeal may be implied as to his appeal if he has provided this Court with a reasonable explanation of the need for an extension. See Tex. R. App. P. 10.5(b)(1)(C), (b)(2)(A), 26.3; Pasha v. YP Advert., L.P., No. 01-14-00456-CV, 2014 WL 4116456, at *1 (Tex. App.-Houston [1st Dist.] Aug. 21, 2014, no pet.) (mem. op.) (although appellants' notice of appeal filed within fifteen-day extension period, appellants still required to offer reasonable explanation of the need for extension).
The Texas Supreme Court has defined "reasonable explanation" to mean any plausible statement of circumstances indicating that the failure to file within the required period was not deliberate or intentional, but was the result of inadvertence, mistake, or mischance. Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 669 (Tex. 1989); see also Fidelity Inv. Ltd. v. Xiaodong Li, No. 01-16-00023-CV, 2016 WL 888807, at *2 (Tex. App.-Houston [1st Dist.] Mar. 8, 2016, no pet.) (mem. op.). 5 Texas courts have rejected as unreasonable explanations those that show an appellant's conscious or strategic decision to wait to file a notice of appeal, reasoning that the explanations did not show inadvertence, mistake, or mischance. See Hodde v. City of Bryan, No. 07-19-00353-CV, 2019 WL 5406563, at *1-2 (Tex. App.- Amarillo Oct. 22, 2019, no pet.) (mem. op.); Pasha, 2014 WL 4116456, at *1-2; Golden v. Energy Expl. Partners, LLC, No. 02-12-00493-CV, 2013 WL 173748, at *1 (Tex. App.-Fort Worth Jan. 17, 2013, no pet.) (mem. op.); Zhao v. Lone Star Engine Installation Ctr., Inc., No. 05-09-01055-CV, 2009 WL 3177578, at *1-2 (Tex. App.-Dallas Oct. 6, 2009, pet. denied) (mem. op.).
On October 6, 2022, the Clerk of this Court notified Torres that his appeal was subject to dismissal for lack of jurisdiction unless, by October 17, 2022, Torres filed a written response demonstrating that this Court has jurisdiction over his appeal. See Tex. R. App. P. 4.1 ("Computing Time"), 42.3(a). The notice informed Torres of the need for a "reasonable explanation" for the late filing of his notice of appeal. In his response to the notice, Torres stated that his trial counsel, on July 21, 2022-more than a month before Torres's notice of appeal was due-informed Torres of the trial court's final judgment and that his trial counsel would be unable to continue representing Torres in the matter. According to Torres, he tried to find new counsel to represent him, but was unable to do so; thus, Torres decided to represent himself and filed his notice of appeal on September 9, 2022. Torres 6 attached to his response, a copy of the July 21, 2022 letter he purportedly received from his trial counsel, which informed him that the trial court had signed a final judgment and referenced the fact that his trial counsel had filed a motion for new trial. The letter also told Torres that it was unlikely that the trial court would grant his motion for new trial, and trial counsel would not be able to continue representing Torres in the matter.
Torres also filed a response to appellees' motion to dismiss for lack of jurisdiction, which was identical to his response to the Clerk of this Court's notice, but Torres did not attach a copy of his trial counsel's July 21, 2022 letter.
Torres's explanation does not indicate that he was unaware of or miscalculated his notice of appeal deadline or that his failure to timely file a notice of appeal resulted from inadvertence, mistake, or chance. See Hodde, 2019 WL 5406563, at *1; JJW Dev., LLC v. Strand Sys. Eng'g, Inc., No. 05-10-01359-CV, 2010 WL 4705824, at *1 (Tex. App.-Dallas Nov. 22, 2010, no pet.) (mem. op.); Hykonnen v. Baker Hughes Bus. Support Servs., 93 S.W.3d 562, 563-64 (Tex. App.-Houston [14th Dist.] 2002, no pet.) (appellant did not state he was unaware of deadline to file notice of appeal; he consciously decided to continue to seek "free or low cost [legal] representation rather than file a timely notice of appeal on his own behalf"); see also Weik v. Second Baptist Church of Houston, 988 S.W.2d 437, 439 (Tex. App.-Houston [1st Dist.] 1999, pet. denied) (where appellant's actions showed intentional course of conduct to delay filing his appeal bond, decision to 7 untimely file appeal bond was not result of inadvertence, mistake, or mischance). Instead, Torres's response acknowledges that he received notice of the trial court's final judgment, at the very latest, on July 21, 2022-more than a month before his notice of appeal was due. Further, he states that the only reason he filed his notice of appeal late was because he did not find an attorney to represent him before the deadline to file his notice of appeal had expired. See Hodde, 2019 WL 5406563, at *1. But an explanation that shows a conscious decision to wait to file a notice of appeal-such as a decision to search for counsel instead of timely filing a pro se notice of appeal-is not considered a "reasonable explanation" for the need for an extension of time. See id.; Golden, 2013 WL 173748, at *1-2 (appellants' explanation that they delayed filing their notice of appeal because "they were not able to pay a retainer for their attorney until" a certain date did not show that late filing was because of inadvertence, mistake, or mischance, but rather "a deliberate or intentional decision to delay the filing until [a]ppellants were able to raise funds to pay their attorney" (internal quotations omitted)); Hykonnen, 93 S.W.3d at 564 ("[A]ppellant's decision to ignore the deadline for filing the notice of appeal until he could secure [legal] representation [was] not a reasonable explanation for failing to file the notice of appeal as required by the rules of appellate procedure."); see also A to Z Wholesale Wine & Spirits, LLC v. Spectra Bank, No. 05-21-01149-CV, 2022 WL 1025098, at *1 8 (Tex. App.-Dallas Apr. 6, 2022, no pet.) (mem. op.) (appellants' explanation demonstrated conscious decision to wait to file their notice of appeal and did not constitute "a reasonable explanation for the delay in the filing"); Polk v. Dallas Cnty., No. 05-13-01731-CV, 2014 WL 1413737, at *1-2 (Tex. App.-Dallas Mar. 31, 2014, no pet.) (mem. op.) ("Because appellant's explanation in this case shows he . . . consciously ignored the [notice of appeal] deadline while making a determination about whether to file an appeal, we conclude appellant has not provided a reasonable explanation for the need for an extension."); Weik, 988 S.W.2d at 439 (where appellant's actions showed intentional course of conduct to delay filing his appeal bond, decision to untimely file appeal bond was not result of inadvertence, mistake, or mischance).
He was also informed that the trial court would likely deny his motion for new trial.
Because Torres has not demonstrated that his late notice of appeal was the result of inadvertence, mistake, or mischance, we conclude that he has not reasonably explained the need for an extension of time to file a notice of appeal, and we are unable to imply an extension. See Fidelity Inv., 2016 WL 888807, at *1-2 ("Because [appellant] offered no reasonable explanation that indicate[d] the late notice of appeal filing was not a deliberate or intentional act," extension could not be implied and "the notice of appeal was not timely."); Pasha, 2014 WL 4116456, at *1-2 ("Because appellants offered no reasonable explanation that indicates the late notice of appeal filing was not deliberate or intentional, the notice of appeal was 9 not timely [filed]."). Without a timely notice of appeal, we lack jurisdiction over Torres's appeal, and it must be dismissed. See Tex. R. App. P. 25.1(b); In re K.L.L., 506 S.W.3d at 560.
Accordingly, we grant appellees' motion and dismiss the appeals for lack of jurisdiction. See Tex. R. App. P. 43.2(f). We dismiss any pending motions as moot. 10