Beatriz L. Salazar v. Secot, Inc., Carmen Tapia and Omar Tapia

• Court: Court of Appeals of Texas
• Decided: August 8, 2019
• Docket: 01-19-00160-CV
• Status: Published

Opinion

Opinion issued August 8, 2019

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-19-00160-CV ——————————— BEATRIZ L. SALAZAR, Appellant V. SECOT, INC., CARMEN TAPIA AND OMAR TAPIA, Appellees

On Appeal from the 215th District Court Harris County, Texas Trial Court Case No. 2014-18506 MEMORANDUM OPINION Appellant, Beatriz L. Salazar, attempts to appeal from the final judgment,

signed by the trial court on December 3, 2018. Appellees, Secot, Inc., Carmen Tapia

and Omar Tapia, filed a motion to dismiss for lack of jurisdiction. We agree, grant

the motion, and dismiss this appeal for want of jurisdiction as untimely. This Court only has jurisdiction over final, appealable judgments or

appealable interlocutory orders. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 51.012,

51.014(a)(1)–(12); Stary v. DeBord, 967 S.W.2d 352, 352–53 (Tex. 1998). “A

judgment is final ‘if and only if either it actually disposes of all claims and parties

then before the court, regardless of its language, or it states with unmistakable clarity

that it is a final judgment as to all claims and all parties.’” In re Vaishangi, Inc., 442

S.W.3d 256, 259 (Tex. 2014) (quoting, inter alia, Lehmann v. Har-Con Corp., 39

S.W.3d 191, 192–93 (Tex. 2001)). The trial court’s December 3, 2018 order

granting the motion for summary judgment by the appellees, Secot, Inc., Carmen

Tapia and Omar Tapia, was a final judgment because it actually disposed of all

claims and parties then before the court as it dismissed all of appellant’s claims

against Secot, Inc., Carmen Tapia and Omar Tapia, the only defendants. See id.; see

also Lehmann, 39 S.W.3d at 192–93, 206.

Generally, a notice of appeal is due within thirty days after the final judgment

or order 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 post-judgment motion. See

TEX. R. APP. P. 26.1(a); TEX. R. CIV. P. 329b(a), (g).

The trial court signed the final judgment on December 3, 2018, making

January 2, 2019, the deadline for filing a notice of appeal. See TEX. R. APP. P. 26.1.

2 Appellant did not file her notice of appeal until March 4, 2019, ninety days after the

December 3, 2018 final judgment. See TEX. R. APP. P. 4.1(a), 26.1(a). Thus, this

appeal is untimely unless appellant had timely filed a post-judgment motion. See

TEX. R. APP. P. 26.1(a); TEX. R. CIV. P. 329b(a).

According to the clerk’s record, appellant filed a motion for new trial on

January 17, 2019. However, this motion for new trial was untimely because any

motion must be filed within thirty days after the date the final judgment was signed

on December 3, 2018, which was January 2, 2019. See TEX. R. CIV. P. 302. Because

appellant’s motion for new trial was not timely filed, it did not extend appellant’s

deadline for filing the notice of appeal. See Stroman v. Martinez, No. 01-14-00991-

CV, 2015 WL 1926015, at *1 (Tex. App.—Houston [1st Dist.] Apr. 28, 2015, no

pet.) (per curiam) (mem. op.) (granting appellee’s motion to dismiss for want of

jurisdiction because untimely motion for rehearing and new trial did not extend

deadline for filing notice of appeal) (citation omitted).

Moreover, although appellant’s notice of appeal claims that she is appealing

from both the December 3, 2018 final judgment and the February 4, 2019 order

denying her motion for new trial, “[a]n order denying a motion for new trial is not

independently appealable.” Fletcher v. Ahrabi, No. 01-12-00794-CV, 2012 WL

6082915, at *1 (Tex. App.—Houston [1st Dist.] Dec. 6, 2012, no pet.) (per curiam)

(mem. op.) (citation omitted). “Unless a statute authorizes an interlocutory appeal,

3 appellate courts generally only have jurisdiction over final judgments.” CMH

Homes v. Perez, 340 S.W.3d 444, 447 (Tex. 2011). Thus, appellant’s deadline to

file the notice of appeal did not run from the date of the order denying her motion

for new trial, but thirty days from the date the trial court signed the judgment on

December 3, 2018, or by January 2, 2019. See TEX. R. APP. P. 26.1(a)(1); Mulhall

v. Anderson, No. 01-16-00067-CV, 2016 WL 6087691, at *1 (Tex. App.—Houston

[1st Dist.] Oct. 18, 2016, no pet.) (per curiam) (mem. op.) (citations omitted).

Appellant’s notice of appeal, filed on March 4, 2019, was untimely filed more

than thirty days after the December 3, 2018 final judgment. Without a timely filed

notice of appeal, this Court can take no action other than to dismiss this appeal for

want of jurisdiction. See TEX. R. APP. P. 25.1, 26.1(a)(1), 26.3; Verburgt v. Dorner,

959 S.W.2d 615, 617–18 (Tex. 1997); see also Stroman, 2015 WL 1926015, at *1.

On July 25, 2019, appellees filed this motion to dismiss for lack of

jurisdiction. Appellees contend that, because appellant’s January 17, 2019 motion

for new trial was untimely, that made her March 4, 2019 notice of appeal untimely,

and appellant’s claim in her motion for new trial that she did not receive timely

notice from the district clerk fails because she did not seek relief under Rule 306a.

4 See TEX. R. CIV. P. 296, 306a; TEX. R. APP. P. 26.1(a), 42.3(a). More than ten days

have passed without a response by appellant.1 See TEX. R. APP. P. 10.3(a).

According to the clerk’s record, although appellant’s motion for new trial

cited to Rule 306a, the trial court’s February 4, 2019 order denying her motion for

new trial did not make the finding required by Rule 4.2(c). See TEX. R. APP. P.

4.2(c); see Willie v. State, No. 01-16-00840-CV, 2017 WL 3526760, at *3 (Tex.

App.—Houston [1st Dist.] Aug. 17, 2017, no pet.) (mem. op.). Without that order

and finding, appellant’s period for filing a notice of appeal from the December 3,

2018 judgment began on the date it was signed, and we lack jurisdiction over this

attempted appeal. See Willie, 2017 WL 3526760, at *3.

Accordingly, we grant the appellees’ motion and dismiss this appeal for want

of jurisdiction. See TEX. R. APP. P. 42.3(a), 43.2(f).

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

1 On July 5, 2019, appellant filed an amended brief on the merits and then on July 30, 2019, appellees filed their amended brief on the merits. 5