Gregory Jackson v. Mr. Keneth Eldridge, Branch Manager, Ms. Stephanie Libadia, Human Resources, True Blue/People Ready Corporation Ans Mr. Steve(John Doe) Project Manager

• Court: Court of Appeals of Texas
• Decided: October 19, 2020
• Docket: 05-20-00825-CV
• Status: Published

Opinion

DISMISS and Opinion Filed October 19, 2020

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-20-00825-CV

MR. GREGORY B. JACKSON, Appellant V. MR. KEN, MESQUITE TEXAS BRANCH MANAGER, TRUE BLUE/PEOPLE READY CORPORATION, MS. STEPHANIE LIBADIA, HUMAN RESOURCES, MR. STEVE PROJECT MANAGER INDIANA INDUSTRIES, Appellees

On Appeal from the 95th District Court Dallas County, Texas Trial Court Cause No. DC-19-17283

MEMORANDUM OPINION Before Chief Justice Burns, Justice Whitehill, and Justice Nowell Opinion by Chief Justice Burns Before the Court is appellant’s motion for extension of time to file his notice

of appeal. Appellant seeks to appeal from the trial court’s July 10, 2020 order

granting a Rule 91a motion to dismiss.1 See TEX. R. CIV. P. 91a. Appellant did not

1 The order dismisses appellant’s claims against Mr. Ken, Mesquite Texas Branch Manager, True Blue/People Ready Corporation, and Ms. Stephanie Libadia, Human Resources. The order does not address appellant’s claims against Mr. Steve Project Manager Indiana Industries. Because nothing in the record reflected those claims had been addressed, we questioned whether the order was final and appealable. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001) (subject to mostly statutory exceptions, appeal may be taken only from final judgment or order that disposes of all parties and claims). In jurisdictional briefing, appellant notes Mr. Steve was not served and explains Mr. Steve was no longer “included as a file a motion for new trial or to modify the judgment. Accordingly, the notice of

appeal was due August 10, 2020 or, with an extension motion, August 25, 2020. See

TEX. R. APP. P. 4.1(a), 26.1, 26.3. The notice of appeal, however, was not filed until

September 11, 2020.

A motion for extension of time is proper only when the notice of appeal is

filed within the extension period. See id. 26.3. Because the notice of appeal here

was filed outside the extension period, we deny the motion without regard to the

merits and dismiss the appeal and all other pending motions for want of jurisdiction.

See id. 42.3(a); 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) (timely filing of a notice of

appeal is jurisdictional).

/Robert D. Burns, III/ ROBERT D. BURNS, III CHIEF JUSTICE

200825F.P05

defendant” after “his employer could not be located and his last name could not be discovered.” See Sabine Offshore Serv., Inc. v. City of Port Arthur, 595 S.W.2d 840, 841 (Tex. 1979) (per curiam) (noting appellate court may consider affidavit outside the record for purposes of determining jurisdiction). Under these circumstances, “the case stands as if there had been a discontinuance” as to Mr. Steve, and the order is deemed final for purposes of appeal. See Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 232 (Tex. 1962) (judgment that disposes of some but not all defendants is final for purposes of appeal if only remaining defendants have not been served and nothing in record reflects plaintiff ever expected to obtain service on unserved defendants). –2– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

Mr. GREGORY B. JACKSON, On Appeal from the 95th District Appellant Court, Dallas County, Texas Trial Court Cause No. DC-19-17283. No. 05-20-00825-CV V. Opinion delivered by Chief Justice Burns, Justices Whitehill and Nowell Mr. Ken, Mesquite Texas Branch participating. Manager, True Blue/People Ready Corporation, Ms. Stephanie Libadia, Human Resources, Mr. Steve Project Manager Indiana Industries, Appellees

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

Judgment entered October 19, 2020.

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