Albert Morris v. Wells Fargo Bank ( 2019 )

Opinion issued September 26, 2019
In The
Court of Appeals
For The
First District of Texas
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NO. 01-19-00610-CV
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ALBERT MORRIS, Appellant
V.
WELLS FARGO BANK, N.A. INDIVIDUALLY AND WELLS FARGO
BANK N.A. AS TRUSTEE FOR ACE SECURITIES CORP. HOME
EQUITY LOAN TRUST, SERIES 2004 OPI ASSET BACKED PASS
THROUGH CERTIFICATES, Appellees
On Appeal from the 434th District Court
Fort Bend County, Texas
Trial Court Case No. 15-DCV-221475
MEMORANDUM OPINION
Appellant, Albert Morris, attempts to appeal the trial court’s April 22, 2019
final summary judgment dismissing his claims. Appellees have filed a motion to
dismiss this appeal for lack of jurisdiction because appellant’s August 14, 2019
notice of appeal was untimely. We grant appellees’ motion and dismiss the appeal.
Applicable Law
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).1 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).
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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).
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Discussion
Here, the trial court signed its final summary judgment dismissing appellant’s
claims on April 22, 2019. Appellant filed a timely motion for new trial on May 21,
2019. The trial court subsequently denied the motion for new trial on July 15, 2019.
On August 14, 2019, appellant filed his notice of appeal purporting to appeal both
the final summary judgment and the order denying his motion for new trial.
Appellees subsequently filed their motion to dismiss this appeal for want of
jurisdiction, asserting that (1) the order denying appellant’s motion for new trial is
not appealable and (2) appellant’s notice of appeal from the final summary judgment
was untimely.
In response to appellees’ motion to dismiss the appeal, appellant asserts that
(1) the July 15, 2019 order denying appellant’s motion for new trial is the final
judgment in the case and (2) the period for calculating the deadline for filing his
notice of appeal ran from the July 15, 2019 denial of his motion for new trial. As
discussed below, appellant’s arguments are directly contradicted by both the Rules
of Appellate Procedure and case law.
First, an order denying a motion for reconsideration or motion for new trial is
not independently appealable. See Digges v. Knowledge Alliance, Inc., 176 S.W.3d
463, 464 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (holding that interlocutory
order denying motion to reconsider is not independently appealable); State Office of
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Risk Mgmt. v. Berdan, 335 S.W.3d 421, 428 (Tex. App.—Corpus Christi 2011, pet.
denied) (“The order denying [appellant’s] motion to reconsider and motion for new
trial was not independently appealable so as to start a new timetable for perfecting
the appeal.”). An appeal must be taken from the final judgment, not the refusal to
reconsider that judgment. See Macklin v. Saia Motor Freight Lines, Inc., 06-12-
00038-CV, 2012 WL 1155141, at *1 (Tex. App.—Texarkana Apr. 6, 2012, no pet.).
It is well established that “[n]o appeal from an order denying a motion for new trial
exists separately from an appeal of the underlying judgment. See Cornwell v.
Cornwell, No. 02-17-00105-CV, 2017 WL 6759031, at *1 (Tex. App.—Fort Worth
Dec. 28, 2017, no pet.). Accordingly, the final appealable judgment in this case is
the trial court’s April 22, 2019 summary judgment dismissing appellant’s claims.
Second, the time for filing a notice of appeal runs from the signing of the final
judgment, not the subsequent denial of a motion for new trial. See TEX. R. APP. P.
26. Rule 26.1(a)(1) provides that, if a motion for new trial is timely filed, “the notice
of appeal must be filed within 90 days after the judgment is signed.” TEX. R. APP. P.
26.1(a). Here, appellant’s motion for new trial extended the deadline for filing his
notice of appeal to 90 days following the trial court’s signing the final judgment on
April 22, 2019. See TEX. R. APP. P. 26.1(a). Because the 90th day after April 22,
2019 fell on a Sunday, the deadline was further extended to the next day, July 22,
2019. See TEX. R. APP. P. 4.1(a). Appellant’s August 14, 2019 notice of appeal was
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untimely filed 23 days after the July 22, 2019 deadline. Contrary to appellant’s
assertions, the denial of a motion for new trial does not extend the time for filing a
notice of appeal beyond the 90-day deadline set forth in Rule 26.1. See Garza v.
Hibernia Nat’l Bank, 227 S.W.3d 233, 233 n. 1 (Tex. App.—Houston [1st Dist.]
2007, no pet.).
Conclusion
Appellant’s notice of appeal was untimely filed 23 days after the final
appealable judgment. Absent a timely notice of appeal, this court is without
jurisdiction to consider this appeal. See Wilkins v. Methodist Health Care Sys., 160
S.W.3d 559, 564 (Tex. 2005); Garza, 227 S.W.3d at 233. Accordingly, we grant
appellees’ motion to dismiss and dismiss this appeal for lack of jurisdiction. See TEX.
R. APP. P. 42.3(a). Any other pending motions are dismissed as moot.
PER CURIAM
Panel consists of Justices Lloyd, Goodman, and Landau.
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