James Shaffer v. Lyondell Chemical Co., LyondellBasell Acetyls, LLC, and Equistar Chemicals, L.P. ( 2023 )

Appellees’ Motion to Dismiss Granted; Dismissed and Memorandum Opinion
filed May 16, 2023.
In The
Fourteenth Court of Appeals
NO. 14-23-00184-CV
JAMES SHAFFER, Appellant
V.
LYONDELL CHEMICAL CO., LYONDELLBASELL ACETYLS, LLC,
AND EQUISTAR CHEMICALS, L.P., Appellees
On Appeal from the 190th District Court
Harris County, Texas
Trial Court Cause No. 2022-09420
MEMORANDUM OPINION
This is an attempted appeal from a judgment signed November 29, 2022.
Appellant, James Shaffer, filed a timely motion for new trial on December 9, 2023.
The trial court denied Shaffer’s motion for new trial on January 25, 2023, and
Shaffer filed his notice of appeal on March 15, 2023. Contending that appellant’s
notice of appeal was untimely, appellees have filed in our court a motion to dismiss
this appeal for lack of jurisdiction.
When an appellant has filed a timely post-judgment motion of a type
identified in rule 26.1(a), a notice of appeal must be filed within 90 days after the
date the judgment is signed. See Tex. R. App. P. 26.1(a). Thus, Shaffer’s notice of
appeal was due February 27, 2023. Shaffer’s notice of appeal was not filed timely.
The appellate rules allow an appellate court to extend the time to file a
notice of appeal. Tex. R. App. P. 26.3. An appellate court is authorized to do so
if, within fifteen days after the original deadline for filing the notice of appeal, the
appellant (1) files in the trial court a notice of appeal and (2) files in the appellate
court a motion complying with rule 10.5(b). Id. Fifteen days after February 27,
2023 was Tuesday March 14, 2023. Shaffer filed a notice of appeal in the trial
court on March 15, 2023; and he filed a motion to extend time to file a notice of
appeal in our court on March 20, 2023. Shaffer did not comply with either
prerequisite in rule 26.3. Therefore, we may not extend time for Shaffer to file his
untimely notice of appeal.
A motion to extend 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 grace period provided by Rule
26.3 for filing a motion to extend time. See Verburgt v. Dorner, 959 S.W.2d 615,
617–18 (1997) (construing the predecessor to Rule 26). This principle is not
implicated here, however, because Shaffer’s notice of appeal was filed one day
after the fifteen-day grace period expired..
In his motion to extend time to file a notice of appeal, Shaffer argues that he
filed the notice of appeal late due to confusion. Assuming as much, we are
nonetheless unauthorized by the rules of procedure to grant relief under the
circumstances presented. In particular, Shaffer argues that he did not receive
notice of the November 29, 2022 judgment, and he will be denied fundamental due
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process unless we extend the time for him to file his notice of appeal. We
disagree. If Shaffer did not receive timely notice of the judgment from the district
clerk, the rules of procedure provide a remedy. Tex. R. Civ. P. 306a(4). Shaffer
has not demonstrated that he has complied with this rule nor has he filed a signed
order with our court establishing that the appellate deadlines have been restarted
under this rule.
Appellant also cites two parental-termination appeals in which the Dallas
and Austin Courts of Appeals allowed for late notices of appeal. See A.G. v Tex.
Dept. of Fam. & Protective Servs., No. 03-22-00502-CV, 2022 WL 10714200(Tex. App.—Austin Oct. 19, 2022, no pet.) (allowing for late notice of appeal
where counsel was not appointed until “well beyond” the deadline for filing a
notice of appeal); In re D.P.G., No. 05-20-00652-CV, 2021 WL 2472717 (Tex.
App.—Dallas June 17, 2021, no pet.) (allowing for late notice of appeal where
counsel did not receive notice of appointment until after the deadline for filing a
notice of appeal). These cases are distinguishable and thus inapplicable here
because both cases involved the attempted appeal of judgments terminating
parental rights and counsel either was not appointed or did not have notice of
appointment until the appellate deadline had expired. We decline to extend those
court’s holdings to the instant appeal. An appellant’s failure to timely file a notice
of appeal deprives this court of jurisdiction. Ridge v. Ridge, 658 S.W.3d 427, 431
(Tex. App.—Houston [14th Dist.] 2022, no pet.). We are without jurisdiction to
consider the merits of this appeal. We deny appellant’s motion to extend time to
file a notice of appeal and grant appellees’ motion to dismiss.
Accordingly, the appeal is ordered dismissed.
PER CURIAM
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Panel consists of Justices Jewell, Hassan, and Wilson.
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