Sandra Smith Brown, Independent of the Estate of R.J. Smith, Jr. v. William Charles Underwood, Jan Ann Underwood Pinborough, and Rosanne Underwood Gerrard ( 2021 )

Opinion filed March 11, 2021
In The
Eleventh Court of Appeals
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No. 11-21-00019-CV
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SANDRA SMITH BROWN, INDEPENDENT EXECUTRIX OF
THE ESTATE OF R.J. SMITH, JR., DECEASED, Appellant
V.
WILLIAM CHARLES UNDERWOOD, JAN ANN UNDERWOOD
PINBOROUGH, AND ROSANNE UNDERWOOD GERRARD,
Appellees
On Appeal from the 385th District Court
Midland County, Texas
Trial Court Cause No. CV56870
MEMORANDUM OPINION
Appellant filed an untimely notice of appeal from an order in which the trial
court granted Appellees’ Rule 91a motion to dismiss, dismissed Appellant’s claims,
and denied Appellees’ requests for sanctions and attorney’s fees. See TEX. R.
CIV. P. 91a. The trial court declared that its dismissal order constituted a final and
appealable judgment that disposed of all claims and parties. Upon docketing this
appeal, the clerk of this court wrote the parties and informed them that the notice of
appeal appeared to have been untimely filed. We requested that Appellant respond
and show grounds to continue the appeal.
Appellant responded by filing “Appellant’s Grounds to Continue Appeal and
Motion for Extension of Time.” In that document, Appellant acknowledged that the
notice of appeal was not timely filed. Counsel for Appellant explained that he and
his staff had inadvertently mis-calendared the due date for the notice of appeal.
Appellant requests that this court grant a motion for an extension of time. Although
we are sympathetic to Appellant’s plight, we are not authorized to grant an extension
as requested by Appellant.
The documents filed in this court reflect that the trial court signed the final
judgment in this cause on October 13, 2020, and that Appellant timely filed a motion
for new trial on November 12, 2020. The notice of appeal was therefore due to be
filed on January 11, 2021—ninety days after the judgment was signed. See TEX. R.
APP. P. 26.1.(a)(1). Appellant’s notice of appeal was filed on February 9, 2021—
119 days after the date that the trial court signed the judgment. The notice of appeal
was therefore filed outside the fifteen-day extension period that is authorized by the
rules. See TEX. R. APP. P. 26.3.
Absent a timely notice of appeal, this court is without jurisdiction to consider
an appeal. Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 564 (Tex. 2005);
Garza v. Hibernia Nat’l Bank, 227 S.W.3d 233, 233–34 (Tex. App.—Houston [1st
Dist.] 2007, no pet.); see Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997)
(stating that, 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). We note
that we are prohibited from suspending the rules “to alter the time for perfecting an
appeal in a civil case.” TEX. R. APP. P. 2. Thus, despite the inadvertence in the late
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filing of the notice of appeal, we are unable to grant Appellant’s motion to allow the
late filing of the notice of appeal beyond the fifteen-day extension period. See id.Appellant suggests that we have the authority to grant an extension of time
pursuant to Meshwert v. Meshwert, 549 S.W.2d 383 (Tex. 1977). We disagree. In
Meshwert, the motion for extension, along with a reasonable explanation relating to
the miscalculation of the proper filing date, was filed within the fifteen-day period
that was authorized by the rules that were applicable at that time. 549 S.W.2d at
383–84. Nothing in the court’s opinion in Meshwert suggests that appellate courts
are authorized to grant a motion for extension of time to file a notice of appeal where
the notice of appeal and the motion for extension were filed more than fifteen days
after the original due date.
Because we are without jurisdiction, we must dismiss the appeal. See TEX. R.
APP. P. 42.3(a).
Accordingly, we dismiss this appeal for want of jurisdiction.
PER CURIAM
March 11, 2021
Panel consists of: Bailey, C.J.,
Trotter, J., and Wright, S.C.J. 1
Williams, J., not participating.
1
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
3