janauld-m-bradford-antoine-a-brown-david-a-conaway-shawn-t-deville ( 2015 )

Opinion issued October 29, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-00564-CV
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JENAUHD M. BRADFORD, ANTOINE A. BROWN, DAVID A.
CONAWAY, SHAWN T. DEVILLE, RAY A. FIELDS, DERRICK L.
HENDERSON, JAMES M. JOHNSON, CURTIS LEE III, GUS PAIGE III,
ANTHONY C. PRICE, MARTIN C. RHODES AND CEDRIC D. WARD,
Appellants
V.
PALLETIZED TRUCKING, INC. AND SAIA, INC., Appellees
On Appeal from the 113th District Court
Harris County, Texas
Trial Court Case No. 2012-30947
MEMORANDUM OPINION
Appellants, Jenauhd M. Bradford, Antoine A. Brown, David A. Conaway,
Shawn T. Deville, Ray A. Fields, Derrick L. Henderson, James M. Johnson, Curtis
Lee III, Gus Paige III, Anthony C. Price, Martin C. Rhodes and Cedric D. Ward,
through counsel, seek to appeal an order of the trial court denying their motion for
new trial after the trial court’s final judgment, signed on February 20, 2015,
granted the appellees’ motions for summary judgment. The notice of appeal, filed
in the trial court on June 25, 2015, states that the judgment appealed from was
signed on February 20, 2015. The appellees have filed a motion to dismiss the
appeal for want of jurisdiction contending that the appeal was untimely. We agree,
grant the motion, and dismiss the appeal.
Generally, this Court has civil appellate jurisdiction over final judgments or
interlocutory orders specifically authorized as appealable by statute. See TEX. CIV.
PRAC. & REM. CODE ANN. §§ 51.012, 51.014(a)(1)–(12) (West Supp. 2014); Bison
Bldg. Materials, Ltd. v. Aldridge, 422 S.W.3d 582, 585 (Tex. 2012); Lehmann v.
Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); 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, 39 S.W.3d at 192–93). According to the clerk’s record, filed
in this Court on October 21, 2015, the trial court’s February 20, 2015 Final
Summary Judgment granting the appellees’ motions for summary judgment was a
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final judgment because it explicitly stated that it dismissed all of appellants’
claims, disposed of all claims, and was appealable. See In re Vaishangi, Inc., 442
S.W.3d at 259; see also Lehmann, 39 S.W.3d at 192–93, 206.
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 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);
TEX. R. CIV. P. 329b(a), (g). 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 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 granting the appellees’
motions for summary judgment on February 20, 2015, making March 23, 2015, the
appellants’ deadline for filing a notice of appeal. See TEX. R. APP. P. 4, 26.1.
Appellants timely filed a motion for rehearing of the final judgment granting
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appellees’ motions for summary judgment on March 3, 2015, extending their
deadline for filing the notice of appeal until May 21, 2015. See TEX. R. CIV. P.
329b(a); TEX. R. APP. P. 4.1(a), 26.1(a)(1). On May 29, 2015, the trial court signed
an “Order Denying Rehearing” that construed the motion for rehearing as a motion
for new trial and denied it. Although the motion for new trial was not ruled on
until May 29, 2015, the deadline to file a notice of appeal from the final judgment
was not extended beyond May 21, 2015. See Naaman v. Grider, 126 S.W.3d 73,
74 (Tex. 2003); Garza v. Hibernia Nat’l Bank, 227 S.W.3d 233, 233 n.1, 234 (Tex.
App.—Houston [1st Dist.] 2007, no pet.); 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).
Appellants’ notice of appeal was not filed in the trial court until June 25,
2015, which was thirty-five days past the May 21, 2015 deadline for filing their
notice of appeal, and twenty days past the fifteen-day extension period ending on
June 5, 2015. See TEX. R. APP. P. 26.1(a)(1), 26.3(a). Appellants did not file a
motion for extension of time to file the notice of appeal, nor can one be implied
because their notice of appeal was untimely filed. See TEX. R. APP. P. 26.3(b);
Naaman, 126 S.W.3d at 74; Verburgt, 959 S.W.2d at 617–18; see also Russell &
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Smith Ford, Inc. v. Universal Underwriters of Tex. Ins. Co., No. 01-12-00441-CV,
2012 WL 3629043, at *1 (Tex. App.—Houston [1st Dist.] Aug. 23, 2012, no pet.)
(mem. op.) (citing Verburgt, 959 S.W.2d at 617) (“Once the fifteen-day period for
granting a motion for extension of time has passed, a party can no longer invoke
the appellate court’s jurisdiction.”). Without a timely filed notice of appeal, this
Court lacks jurisdiction over the appeal. See TEX. R. APP. P. 25.1.
On September 18, 2015, appellees moved to dismiss this appeal for want of
jurisdiction as untimely. Within that motion, appellees also requested that this
Court impose damages on appellants for the filing of a frivolous appeal. See TEX.
R. APP. P. 45. Appellees’ motion contains a certificate of conference stating that
this motion is opposed because appellants’ counsel had been contacted about this
motion, but had yet to respond. Although the motion has been on file with this
Court for more than ten days, no opposition has been filed. See TEX. R. APP. P.
10.1(a)(5), 10.3(a)(2).
CONCLUSION
Accordingly, we grant the appellees’ motion and dismiss the appeal for
want of jurisdiction. See TEX. R. APP. P. 42.3(a); 43.2(f). We deny the request for
damages as moot.
PER CURIAM
Panel consists of Justices Keyes, Massengale, and Lloyd.
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