Joseph Perdew v. American Bank of Commerce

• Court: Court of Appeals of Texas
• Decided: August 27, 2024
• Docket: 01-24-00494-CV
• Status: Published

Opinion

Opinion issued August 27, 2024

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-24-00494-CV ——————————— JOSEPH LEE PERDEW, Appellant V. AMERICAN BANK OF COMMERCE, Appellee

On Appeal from the 127th District Court Harris County, Texas Trial Court Case No. 2023-41058

MEMORANDUM OPINION

Appellant, Joseph Lee Perdew, proceeding pro se, filed a notice of appeal

from the trial court’s May 13, 2024 final judgment.

We dismiss the appeal for lack of jurisdiction. Any party “seek[ing] to alter the trial court’s judgment” must timely file a

notice of appeal. TEX. R. APP. P. 25.1(c). If a party fails to timely file a notice of

appeal, we have no jurisdiction to address the merits of that party’s appeal. See TEX.

R. APP. P. 25.1(b); In re K.L.L., 506 S.W.3d 558, 560 (Tex. App.—Houston [1st

Dist.] 2016, no pet.) (without timely notice of appeal, appellate court lacks

jurisdiction over appeal); Brashear v. Victoria Gardens of McKinney, L.L.C., 302

S.W.3d 542, 545–46 (Tex. App.—Dallas 2009, no pet.) (timely filing of notice of

appeal is jurisdictional prerequisite).

Generally, a notice of appeal is due within thirty days after the trial court signs

its judgment. See TEX. R. APP. P. 26.1. The deadline to file a notice of appeal is

extended to ninety days after the judgment is signed if, within thirty days after the

judgment is signed, a 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); see also TEX. R. CIV. P.

329b. 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 files a notice of appeal in the

trial court and a motion for extension of time to file a notice of appeal that complies

with Texas Rule of Appellate Procedure 10.5(b) in the appellate court. See TEX. R.

APP. P. 10.5(b), 26.3.

2 Here, the trial court signed its final judgment on May 13, 2024. The record

does not reflect that appellant filed any post-judgment motions extending the

notice-of-appeal deadline. Thus, appellant’s notice of appeal was due to be filed on

or before June 12, 2024. See TEX. R. APP. P. 26.1. Appellant filed his notice of

appeal on June 27, 2024 but did not file a motion for extension of time to file a notice

of appeal. See TEX. R. APP. P. 10.5(b), 26.3.

Although appellant did not file a motion for extension of time to file a notice

of appeal when he filed his notice of appeal, 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 Texas Rule of Appellate Procedure 26.1, but within the

fifteen-day extension period provided by Texas Rule of Appellate Procedure 26.3,

and the appellant reasonably explains the need for an extension of time. TEX. R.

APP. P. 26.1, 26.3; Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997); In re

A.J.U., No. 01-16-00371-CV, 2016 WL 3946925, at *1 (Tex. App.—Houston [1st

Dist.] July 19, 2016, no pet.) (mem. op.). Here, appellant filed his notice of appeal

within the fifteen-day extension period provided by Texas Rule of Appellate

Procedure 26.3; thus, a motion for extension of time to file his notice of appeal may

be implied as to his appeal if he has provided this Court with a reasonable

explanation of the need for an extension. See TEX. R. APP. P. 10.5(b)(1)(C),

(b)(2)(A), 26.3; Jones v. City of Houston, 976 S.W.2d 676, 677 (Tex. 1998); Pasha

3 v. YP Advert., L.P., No. 01-14-00456-CV, 2014 WL 4116456, at *1 (Tex. App.—

Houston [1st Dist.] Aug. 21, 2014, no pet.) (mem. op.) (although appellants’ notice

of appeal filed within fifteen-day extension period, appellants still required to offer

reasonable explanation of need for extension).

On August 1, 2024, the Clerk of this Court notified appellant that his appeal

was subject to dismissal for lack of jurisdiction unless, by August 12, 2024, appellant

filed a written response providing a reasonable explanation for the untimely filing

of his notice of appeal. See TEX. R. APP. P. 4.1(a), 42.3(a), (c); cf. Hernandez v.

McLane, No. 07-19-00422-CV, 2020 WL 62627, at *1 (Tex. App.—Amarillo Jan.

6, 2020, no pet.) (mem. op.). Appellant did not adequately respond.

Because appellant has not provided this Court with a reasonable explanation

for his untimely filed notice of appeal, we cannot grant an implied motion for

extension. See TEX. R. APP. P. 10.5(b), 26.3; James v. WoodForest Nat’l Bank, No.

01-22-00899-CV, 2023 WL 2483548, at *2 (Tex. App.—Houston [1st Dist.] Mar.

14, 2023, no pet.) (mem. op.); Hernandez, 2020 WL 626627, at *1. Accordingly,

we dismiss appellant’s appeal for lack of jurisdiction. See TEX. R. APP. P. 42.3(a),

(c), 43.2(f); Renovation Genius LLC v. Brooks, No. 01-21-00063-CV, 2023 WL

17539, at *1 (Tex. App.—Houston [1st Dist.] Jan. 3, 2023, no pet.) (mem. op.)

(dismissing appeal for lack of jurisdiction where appellant’s notice of appeal was

untimely and appellant did not provide any reasonable explanation for failing to

4 timely file notice of appeal); see also James, 2023 WL 2483548, at *1–2 (dismissing

appeal for lack of jurisdiction where appellant filed notice of appeal within

fifteen-day extension period but did not respond to appellate court’s notice to

provide reasonable explanation for untimely notice of appeal); Hernandez, 2020 WL

626627, at *1. We dismiss any pending motions as moot.

PER CURIAM Panel consists of Chief Justice Adams and Justices Hightower and Countiss.