Facon Brazilian Steakhouse, LLC and Prince Nwakanma v. Sysco Houston, Inc.

• Court: Court of Appeals of Texas
• Decided: March 3, 2016
• Docket: 01-15-00698-CV
• Status: Published

Opinion

Opinion issued March 3, 2016

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-15-00698-CV ——————————— FACON BRAZILIAN STEAKHOUSE, LLC AND PRINCE NWAKANMA, Appellants V. SYSCO HOUSTON, INC., Appellee

On Appeal from the 295th District Court Harris County, Texas Trial Court Case No. 2014-45624

MEMORANDUM OPINION Appellants, Facon Brazilian Steakhouse, LLC and Prince Nwakanma, attempt

to appeal from the trial court’s order granting the appellee’s motion for summary

judgment, signed on June 24, 2015. We dismiss the appeal for want of jurisdiction. Generally, this Court has civil appellate jurisdiction over final judgments or

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

51.014(a)(1)-(12). (West Supp. 2015); 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 June 24,

2015 order granting appellee’s motion for summary judgment was a final judgment

because it explicitly stated that it was disposing of all parties and claims in this

action. 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

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

2 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 TEX. R. APP. P. 26.1, 26.3; Verburgt v. Dorner, 959

S.W.2d 615, 617–18 (Tex. 1997).

Here, the trial court signed the final judgment on June 24, 2015, and no motion

for new trial was filed, setting the deadline for filing a notice of appeal on July 24,

2015. See TEX. R. APP. P. 26.1; TEX. R. CIV. P. 329b(a). Appellants’ notice of appeal

was not filed in the trial court until August 11, 2015, which was one day past the

fifteen-day extension period ending on August 10, 2015. See TEX. R. APP. P. 4.1(a),

26.3(a). Although appellants’ notice of appeal claimed that they were

contemporaneously filing a motion for extension of time to file the notice of appeal,

that motion was not filed with this Court, as was required. See id. 26.3(b).1

In any event, because appellants’ notice of appeal was untimely filed, a motion

for extension of time cannot be implied. See TEX. R. APP. P. 26.3(b). “Once the

fifteen-day period for granting a motion for extension of time has passed, a party can

no longer invoke the appellate court’s jurisdiction.” Verburgt, 959 S.W.2d at 617;

see also Mallory v. W. Bellfort Prop. Owners Ass’n, No. 01-14-00936-CV, 2015 WL

1 Appellee, Sysco Houston, Inc., filed a response, in this Court, to appellants’ motion for extension of time to file notice of appeal, even though that motion was not filed in this Court, claiming that this Court lacks jurisdiction because both the notice and motion were untimely filed. 3 4138755, at *2 (Tex. App.—Houston [1st Dist.] July 9, 2015, no pet.) (mem. op.)

(granting appellee’s motion to dismiss because notice of appeal was filed one day

past the fifteen-day period) (citations omitted). Without a timely filed notice of

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

On September 23, 2015, the Clerk of this Court notified appellants that their

appeal was subject to dismissal for want of jurisdiction unless they timely responded

and showed how this Court had jurisdiction over this appeal. See TEX. R. APP. P.

42.3(a), (c). Appellants failed to file any response.

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

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

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