Alper Karaali v. Sun Development, L.P.

• Court: Court of Appeals of Texas
• Decided: August 30, 2016
• Docket: 01-16-00172-CV
• Status: Published

Opinion

Opinion issued August 30, 2016

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-16-00172-CV ——————————— ALPER KARAALI, Appellant V. SUN DEVELOPMENT, L.P., Appellee

On Appeal from the 61st District Court Harris County, Texas Trial Court Case No. 2015-61651

MEMORANDUM OPINION Appellant, Alper Karaali, proceeding pro se, attempts to appeal from the trial

court’s order, signed on December 10, 2015, dismissing without prejudice

appellant’s case for his failure to pay all trial-court costs by December 1, 2015.

Appellant filed an appellate brief and a “Request [T]o Proceed On This Appeal With Establishing Indigence” in this Court. We dismiss the appeal for want of jurisdiction

and dismiss this motion as moot.

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 id. 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 id. 26.1, 26.3; Verburgt v. Dorner, 959 S.W.2d 615, 617–18 (Tex.

1997).

Here, the trial court signed the order of dismissal on December 10, 2015. See

TEX. R. CIV. P. 145(d). Because appellant did not file any post-judgment motion,

January 11, 2016, was his deadline for filing a notice of appeal. See TEX. R. APP. P.

4.1(a), 26.1(a)(1).

2 Appellant did not file his notice of appeal in the trial court until February 26,

2016, forty-six days past the January 11, 2016 deadline for filing his notice of appeal,

and thirty-one days past the fifteen-day extension period that ended on January 26,

2016. See TEX. R. APP. P. 26.1(a)(1), 26.3(a). Appellant did not file a motion for

extension of time to file the notice of appeal, and one cannot be implied because the

notice of appeal was not filed within the fifteen-day extension period. See id.

26.3(b); Verburgt, 959 S.W.2d at 617–18. Without a timely filed notice of appeal,

this Court lacks jurisdiction over the appeal. See TEX. R. APP. P. 25.1.

On April 1, 2016, appellant prematurely filed in this Court an appellate brief

that did not address jurisdiction. On April 28, 2016, the Clerk of this Court notified

appellant that his appeal was subject to dismissal for want of jurisdiction unless he

timely responded and showed how this Court had jurisdiction over his appeal. See

TEX. R. APP. P. 42.3(a), (c). Although appellant timely filed a response, he failed to

show grounds for this Court’s jurisdiction over this appeal. Instead, appellant

claimed, among other things, that the trial court erred in denying his affidavit of

indigence, the Texas Supreme Court has amended the rules to allow permissive

interlocutory appeals under Texas Civil Practice & Remedies Code § 51.014(d), and

his affidavit of indigence was granted on January 27, 2016, in a case he filed in

federal court. However, appellant’s response does not show how this Court has

jurisdiction over this untimely appeal.

3 Conclusion Accordingly, we dismiss the appeal for want of jurisdiction. See TEX. R. APP.

P. 42.3(a); 43.2(f). We dismiss any pending motions as moot.

PER CURIAM Panel consists of Chief Justice Radack and Justices Higley and Huddle.