Frederick Altyman Brown (Jr.) v. Joe Jordan Trucks, Inc.

• Court: Court of Appeals of Texas
• Decided: December 13, 2021
• Docket: 05-21-00821-CV
• Status: Published

Opinion

DISMISS and Opinion Filed December 13, 2021

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00821-CV

FREDERICK ALTYMAN BROWN (JR.), Appellant V. JOE JORDAN TRUCKS, INC., Appellee

On Appeal from the 191st Judicial District Court Dallas County, Texas Trial Court Cause No. DC-19-20105

MEMORANDUM OPINION Before Justices Reichek, Nowell, and Carlyle Opinion by Justice Reichek The deadline for filing this appeal, from the trial court’s March 25, 2021

summary judgment, was June 23, 2021 or, with an extension motion, July 8, 2021.

See TEX. R. APP. P. 26.1(a)(1). The notice of appeal was not filed, however, until

September 21, 2021.

Because the timely filing of a notice of appeal is jurisdictional, we questioned

our jurisdiction over the appeal and directed appellant to file a letter brief addressing

our concern. See Brashear v. Victoria Gardens of McKinney, L.L.C., 302 S.W.3d

542, 545 (Tex. App.—Dallas 2009, no pet.) (op. on reh’g). Appellant complied,

seemingly relying, in relevant part, on the tolling of deadlines in the Texas Supreme Court’s emergency Covid-19 orders.1 As appellee notes in response, however,

appellant did not separately request an extension of time to file the notice of appeal.

See TEX. R. APP. P. 26.3. And, while an extension request can be implied when the

notice of appeal is filed within the extension period, we cannot imply an extension

request when, as here, the notice of appeal is filed outside the extension period. See

Naaman v. Grider, 126 S.W.3d 73, 74 (Tex. 2003) (per curiam); Verburgt v. Dorner,

959 S.W.2d 615, 617 (Tex. 1997). Accordingly, on the record before us, we dismiss

the appeal. See TEX. R. APP. P. 42.3(a).

/Amanda L. Reichek/ AMANDA L. REICHEK JUSTICE

210821F.P05

1 Although appellant’s letter brief appears to address only the merits of his appeal, the letter states it is in response to our request for jurisdictional briefing. Accordingly, we have liberally construed the brief as also addressing the timeliness of the appeal. –2– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

FREDERICK ALTYMAN BROWN On Appeal from the 191st Judicial (JR.), Appellant District Court, Dallas County, Texas Trial Court Cause No. DC-19-20105. No. 05-21-00821-CV V. Opinion delivered by Justice Reichek, Justices Nowell and Carlyle JOE JORDAN TRUCKS, INC., participating. Appellee

In accordance with this Court’s opinion of this date, we DISMISS the appeal.

We ORDER that appellee Joe Jordan Trucks, Inc. recover its costs, if any, of this appeal from appellant Frederick Altyman Brown (Jr.).

Judgment entered December 13, 2021.

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