Eddie James v. WoodForest National Bank

• Court: Court of Appeals of Texas
• Decided: March 14, 2023
• Docket: 01-22-00899-CV
• Status: Published

Opinion

Opinion issued March 14, 2023

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-22-00899-CV ——————————— EDDIE JAMES, Appellant V. WOODFOREST NATIONAL BANK, Appellee

On Appeal from the 333rd District Court Harris County, Texas Trial Court Case No. 2022-09837

MEMORANDUM OPINION

Appellant, Eddie James, proceeding pro se, filed a notice of appeal of the trial

court’s October 18, 2022 judgment.

We dismiss the appeal for lack of jurisdiction. Any party “seek[ing] to alter the trial court’s judgment” must timely file a

notice of appeal. TEX. R. APP. P. 25.1(c). If a party fails to timely file a notice of

appeal, we have no jurisdiction to address the merits of that party’s appeal. See TEX.

R. APP. P. 25.1(b); In re K.L.L., 506 S.W.3d 558, 560 (Tex. App.—Houston [1st

Dist.] 2016, no pet.) (without timely notice of appeal, appellate court lacks

jurisdiction over appeal); Brashear v. Victoria Gardens of McKinney, L.L.C., 302

S.W.3d 542, 545–46 (Tex. App.—Dallas 2009, no pet.) (timely filing of notice of

appeal is jurisdictional prerequisite).

Generally, a notice of appeal is due within thirty days after the trial court signs

its judgment. See TEX. R. APP. P. 26.1. The deadline to file a notice of appeal is

extended to ninety days after the judgment is signed if, within thirty days after the

judgment is signed, a 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 TEX. R. APP. P. 26.1(a); see also TEX. R. CIV. P.

329b. 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 files a notice of appeal and a

motion for extension of time to file a notice of appeal that complies with Texas Rule

of Appellate Procedure 10.5(b). See TEX. R. APP. P. 10.5(b), 26.3.

Here, the trial court signed its final judgment on October 18, 2022. The record

does not reflect that appellant filed any post-judgment motions extending the

2 notice-of-appeal deadline. Thus, appellant’s notice of appeal was due to be filed on

or before November 17, 2022. See TEX. R. APP. P. 26.1. Appellant filed his notice

of appeal on December 1, 2022 but did not file a motion for extension of time to file

a notice of appeal. See TEX. R. APP. P. 10.5(b), 26.3.

Although appellant did not file a motion for extension of time to file a notice

of appeal when he filed his notice of appeal, 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 Texas Rule of Appellate Procedure 26.1, but within the

fifteen-day extension period provided by Texas Rule of Appellate Procedure 26.3,

and the appellant reasonably explains the need for an extension of time. TEX. R.

APP. P. 26.1, 26.3; Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997); In re

A.J.U., No. 01-16-00371-CV, 2016 WL 3946925, at *1 (Tex. App.—Houston [1st

Dist.] July 19, 2016, no pet.) (mem. op.). Here, appellant filed his notice of appeal

within the fifteen-day extension period provided by Texas Rule of Appellate

Procedure 26.3; thus, a motion for extension of time to file his notice of appeal may

be implied as to his appeal if he has provided this Court with a reasonable

explanation of the need for an extension. See TEX. R. APP. P. 10.5(b)(1)(C),

(b)(2)(A), 26.3; Jones v. City of Houston, 976 S.W.2d 676, 677 (Tex. 1998); Pasha

v. YP Advert., L.P., No. 01-14-00456-CV, 2014 WL 4116456, at *1 (Tex. App.—

Houston [1st Dist.] Aug. 21, 2014, no pet.) (mem. op.) (although appellants’ notice

3 of appeal filed within fifteen-day extension period, appellants still required to offer

reasonable explanation of need for extension).

On February 2, 2023, the Clerk of this Court notified appellant that his appeal

was subject to dismissal for lack of jurisdiction unless, by February 16, 2023,

appellant filed a written response providing a reasonable explanation for the

untimely filing of his notice of appeal. See TEX. R. APP. P. 42.3(a), (c); cf.

Hernandez v. McLane, No. 07-19-00422-CV, 2020 WL 62627, at *1 (Tex. App.—

Amarillo Jan. 6, 2020, no pet.) (mem. op.). Appellant did not adequately respond.

Because appellant did not provide a reasonable explanation for his untimely

filed notice of appeal, we cannot grant an implied motion for extension. See TEX.

R. APP. P. 10.5(b), 26.3; Hernandez, 2020 WL 626627, at *1. Accordingly, we

dismiss appellant’s appeal for lack of jurisdiction. See TEX. R. APP. P. 42.3(a), (c),

43.2(f); Renovation Genius LLC v. Brooks, No. 01-21-00063-CV, 2023 WL 17539,

at *1 (Tex. App.—Houston [1st Dist.] Jan. 3, 2023, no pet.) (mem. op.) (dismissing

appeal for lack of jurisdiction where appellant’s notice of appeal was untimely and

appellant did not provide any reasonable explanation for failing to timely file notice

of appeal); see also Hernandez, 2020 WL 626627, at *1; In re H.H., No.

07-15-00308-CV, 2015 WL 5559922, at *1 (Tex. App.—Amarillo Sept. 18, 2015,

no pet.) (mem. op.) (dismissing appeal for lack of jurisdiction where appellant filed

notice of appeal within fifteen-day extension period but did not respond to appellate

4 court’s notice to provide reasonable explanation for untimely notice of appeal). We

dismiss any pending motions as moot.

PER CURIAM Panel consists of Justices Landau, Countiss, and Guerra.