Christina Akinnusotu v. FC Marketplace, LLC

• Court: Court of Appeals of Texas
• Decided: September 14, 2023
• Docket: 02-23-00291-CV
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-23-00291-CV ___________________________

CHRISTINA AKINNUSOTU, Appellant

V.

FC MARKETPLACE, LLC, Appellee

On Appeal from the 153rd District Court Tarrant County, Texas Trial Court No. 153-333281-22

Before Birdwell, Bassel, and Womack, JJ. Per Curiam Memorandum Opinion MEMORANDUM OPINION

Appellant Christina Akinnusotu attempts to appeal the trial court’s May 1, 2023

order granting Appellee FC Marketplace, LLC’s motion for traditional summary

judgment on her petition for bill of review. Appellant filed a motion for new trial on

May 17, 2023. She filed her notice of appeal on August 16, 2023.

Generally, a notice of appeal must be filed within thirty days after the date the

judgment is signed, but certain post-judgment motions can extend that deadline to

ninety days. See Tex. R. App. P. 26.1(a) (“[T]he notice of appeal must be filed within

90 days after the judgment is signed if any party files . . . a motion for new trial[ or] a

motion to modify the judgment[.]”). An appellate court may grant an additional

fifteen-day extension of time to file the notice of appeal. See Tex. R. App. P. 26.3;

Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). Thus, in a typical civil case, a

party who wishes to appeal could take up to 105 days from the date the judgment is

signed to file a notice of appeal. See Tex. R. App. P. 26.1(a), 26.3; Poard v. Webb, No.

02-22-00262-CV, 2022 WL 3464863, at *1 (Tex. App.—Fort Worth Aug. 18, 2022, no

pet.) (per curiam) (mem. op.); see also Verburgt, 959 S.W.2d at 617 (citing Rule 26.3 and

holding motion for extension of time is necessarily implied when appellant, acting in

good faith, files a document attempting to perfect appeal beyond time allowed by

appellate rules but within fifteen-day period in which appellant would be entitled to

move to extend filing deadline).

2 Because Appellant timely filed a motion for new trial within thirty days of the

judgment’s signing, the notice of appeal was due no later than July 31, 2023.1 See Tex.

R. App. P. 26.1(a). Appellant did not file her notice of appeal within fifteen days or

otherwise move to extend that deadline. See Tex. R. App. P. 26.3; Verburgt, 959 S.W.2d

at 617; Poard, 2022 WL 3464863, at *1. Even if she had, the notice-of-appeal deadline

would not have extended beyond August 15, 2023.2 See Tex. R. App. P. 26.3.

Appellant’s August 16, 2023 notice of appeal was therefore untimely.

Concerned that we did not have jurisdiction over the appeal, we notified

Appellant that unless she filed a response showing grounds for continuing the appeal,

we could dismiss it. See Tex. R. App. P. 42.3(a), 44.3. Appellant filed a response

asserting that “good cause” existed to allow for this court to find that it had

jurisdiction pursuant to Rule 26.1. To show “good cause,” Appellant’s lead appellate

counsel attached his own affidavit to the response, in which he attested that a sudden

death in his family was the cause of the unintentional delay in filing Appellant’s notice

of appeal. Although we sympathize with counsel and his family, we do not have

1 The ninetieth day fell on a weekend, moving Appellant’s notice-of-appeal deadline to the following Monday. See Tex. R. App. P. 4.1(a). 2 Because the notice-of-appeal deadline had been extended due to a weekend, see Tex. R. App. P. 4.1(a), the fifteen-day period for filing a motion for an additional extension began on the extended date of the underlying filing deadline, or July 31, 2023. See Phoenix v. John F. Scott & Co., 676 S.W.2d 441, 442–43 (Tex. App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.) (order on ancillary motion); Roy W. McDonald & Elaine A. Grafton Carlson, Texas Civil Appellate Practice § 12:32 (2d ed. 2022); see also Poard, 2022 WL 3464863, at *1 (citing Rule 4.1(a) and calculating fifteen-day period from extended date of underlying filing deadline).

3 jurisdiction to consider this appeal. See Tex. R. App. P. 2, 25.1(b); Verburgt, 959

S.W.2d at 617 (“[O]nce the period for granting a motion for extension of time . . . has

passed, a party can no longer invoke the appellate court’s jurisdiction.”); Chilkewitz v.

Winter, 25 S.W.3d 382, 382 (Tex. App.—Fort Worth 2000, no pet.) (per curiam) (“The

times for filing a notice of appeal are jurisdictional in this court, and absent a timely

filed notice of appeal, we must dismiss the appeal.”); Galerie Barbizon, Inc. v. Nat’l Asset

Placement Corp., 16 S.W.3d 506, 508 (Tex. App.—Houston [1st Dist.] 2000, no pet.)

(per curiam) (“[W]e have no jurisdiction to grant an extension of time, even if

properly requested, or to consider this appeal.”); see also Jones v. City of Houston, 976

S.W.2d 676, 677 (Tex. 1998).

Accordingly, because Appellant’s August 16, 2023 notice of appeal was

untimely, we must dismiss the appeal for want of jurisdiction. See Tex. R. App. P.

42.3(a), 43.2(f).

Per Curiam

Delivered: September 14, 2023