Anthony P. Griffin, Individually and as Successor-In-Interest to Anthony P. Griffin Inc. and as Successor-In-Interst to Anthony P. Griffin Pension and Profit Sharin Pan v. Galveston County

• Court: Court of Appeals of Texas
• Decided: August 22, 2023
• Docket: 01-23-00377-CV
• Status: Published

Opinion

Opinion issued August 22, 2023

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-23-00377-CV ——————————— ANTHONY P. GRIFFIN, INDIVIDUALLY AND AS SUCCESSOR-IN- INTEREST TO ANTHONY P. GRIFFIN INC. AND AS SUCCESSOR-IN- INTEREST TO ANTHONY P. GRIFFIN PENSION AND PROFIT SHARING PLAN, Appellants V. GALVESTON COUNTY, CITY OF TEXAS CITY, TEXAS CITY INDEPENDENT SCHOOL DISTRICT, COLLEGE OF THE MAINLAND, CITY OF GALVESTON, GALVESTON INDEPENDENT SCHOOL DISTRICT, GALVESTON COLLEGE, AND GALVESTON COUNTY NAVIGATION DISTRICT NO. 1, Appellees

On Appeal from the 122nd District Court Galveston County, Texas Trial Court Case No. 17-TX-0246

MEMORANDUM OPINION Appellants filed a notice of appeal on May 17, 2023 from an order of

summary judgment signed on April 14, 2023. Appellees filed a motion to dismiss

the appeal for lack of jurisdiction. We grant the motion and dismiss the appeal.

The deadline for filing a notice of appeal is typically thirty days after the

judgment is signed. See TEX. R. APP. P. 26.1. This deadline will be extended to

ninety days after the judgment is signed if the appellant timely files a motion for

new trial, motion to modify the judgment, a 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); Zhuang v. Zhang, No. 01-17-00518-CV, 2017 WL 5712544, at *1

(Tex. App.—Houston [1st Dist.] Nov. 28, 2017, pet. denied) (mem. op.). The

appellate court lacks jurisdiction over an appeal if the notice of appeal is untimely

filed. TEX. R. APP. P. 25.1; In re United Servs. Auto Ass’n, 307 S.W.3d 299, 307

(Tex. 2010).

The clerk’s record contains no motion for new trial or other post-judgment

motion that would extend the deadline for filing the notice of appeal. Accordingly,

the notice of appeal was due within 30 days after the trial court signed the April 14,

2023 order granting summary judgment. The thirtieth day after April 14, 2023 was

May 15, 2023. Appellants did not file their notice of appeal until May 17, 2023.

Thus, the notice of appeal was two days late.

2 However, courts are not to dismiss appeals for procedural defects when “any

arguable interpretation of the Rules of Appellate Procedure would preserve the

appeal.” Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997). If an appellant,

acting in good faith files a notice of appeal beyond the deadline but within the

fifteen-day period in which the appellant would be entitled to move for an

extension of the deadline under Rule 26.3, a motion for extension of time is

implied. See id. at 617.

Appellants did not file a motion for extension of time, but under Verburgt,

an extension of time is implied. Appellants must offer a reasonable explanation to

support the late filing. See Torres v. Cheniere Energy, Inc., No. 01-22-00659-CV,

2022 WL 17346208, at *1 (Tex. App.—Houston [1st Dist.] Dec. 1, 2022, pet.

denied) (mem. op.). However, even after appellees filed a motion to dismiss,

arguing that appellants had not filed a timely notice of appeal and had not provided

a reasonable explanation for the untimely filing, appellants did not come forward

with a reasonable explanation.

Appellants’ counsel attached to the notice of appeal an affidavit attesting to

the fact that she did not receive notice or actual knowledge of the signing of the

judgment in time to file a timely notice of appeal. Appellee asserts that this

affidavit is not sufficient because it does not comply with Rule 306a(5).

3 If a party adversely affected by a judgment has not received notice of the

signing of the judgment or acquired actual knowledge of it within twenty days after

it is signed, the deadlines shall begin on the date his counsel received notice or

acquired actual knowledge, whichever is first. See TEX. R. CIV. P. 306a(4). This

extension is not automatic. See TEX. R. CIV. P. 306a(5). To establish application

of this extension of time, the party must prove in the trial court on sworn motion

and notice the date he or his attorney first received notice or acquired actual

knowledge of the signing of the judgment. See TEX. R. CIV. P. 306a(5).

The clerk’s record contains no motion filed by appellants seeking an

extension under Rule 306a(5). Appellants’ counsel has not established that she

followed the requirements of Rule 306a(4)-(5) and thus, her claim of late notice is

insufficient to extend the deadline for filing the notice of appeal. Because

appellants have not provided a reasonable explanation for the delay in filing the

notice of appeal, we grant appellees’ motion.

The appeal is dismissed for lack of jurisdiction. See TEX. R. APP. P. 42.3(a),

43.2(f). Any other pending motions are dismissed as moot.

PER CURIAM

Panel consists of Justices Kelly, Landau, and Farris.