Harvey Guidry v. Texas Fair Plan Association

Opinion

Opinion issued March 23, 2023

In The

Court of Appeals

For The

First District of Texas

Generally, a notice of appeal is due within thirty days after the 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 TEX. R. APP. P. 26.1(a); TEX. R. CIV. P. 296, 329b(a), (g). The time to file a notice of appeal also may 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 “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 (Tex. 1997) (motion for extension implied when appellant acting in good faith files notice of appeal in appellate court within fifteen days after deadline to perfect appeal); Weik v. Second Baptist Church of Houston, 988 S.W.2d 437, 439 (Tex. App.—Houston [1st Dist.] 1999, pet. denied) (noting that “reasonable explanation” for late filing is required for entitlement to fifteen-day extension to perfect appeal).

The trial court signed the final judgment in this case on August 30, 2022.

The notice of appeal indicates Appellant filed a motion for new trial on September

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27, 2022, extending Appellant’s time to file a notice of appeal to ninety days after the judgment was signed. Appellant’s notice of appeal was thus due by November 28, 2022, or by December 13, 2022 with a fifteen-day extension. See TEX. R. APP. P. 4.1, 26.1(a), 26.3; Verburgt, 959 S.W.2d at 617. Appellant filed his notice of appeal on December 21, 2022. Without a timely filed notice of appeal, this Court lacks jurisdiction over the appeal. See TEX. R. APP. P. 25.1(b); Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 564 (Tex. 2005).

On February 16, 2023, the Clerk of this Court notified Appellant that his appeal was subject to dismissal for want of jurisdiction unless he filed a written response by February 26, 2023 showing how this Court has jurisdiction over this appeal. See TEX. R. APP. P. 42.3(a). Appellant failed to respond.

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

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

PER CURIAM

Panel consists of Justices Hightower, Rivas-Molloy, and Farris.

Footnotes

1. NO. 01-23-00005-CV ——————————— HARVEY GUIDRY, Appellant V. TEXAS FAIR PLAN ASSOCIATION, Appellee On Appeal from the County Civil Court at Law No. 2 Harris County, Texas Trial Court Case No. 1136776 MEMORANDUM OPINION On December 21, 2022, Appellant Harvey Guidry filed a notice of appeal of the trial court’s final judgment signed on August 30, 2022. We dismiss the appeal for want of jurisdiction.