Harvey Guidry v. Texas Fair Plan Association

• Court: Court of Appeals of Texas
• Decided: March 23, 2023
• Docket: 01-23-00005-CV
• Status: Published

Opinion

Opinion issued March 23, 2023

In The

Court of Appeals For The

First District of Texas ———————————— 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. 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

2 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.