Judy DeLaGarza and Thomas M. DeLaGarza v. U.S. Bank Trust National Association, as Trustee of the Chalet Series IV Trust

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-20-00397-CV ___________________________

JUDY DELAGARZA AND THOMAS M. DELAGARZA, Appellants

V.

U.S. BANK TRUST NATIONAL ASSOCIATION, AS TRUSTEE OF THE CHALET SERIES IV TRUST, Appellee

On Appeal from the 367th District Court Denton County, Texas Trial Court No. 14-04892-367

Before Sudderth, C.J.; Kerr and Birdwell, JJ. Memorandum Opinion by Chief Justice Sudderth MEMORANDUM OPINION

Appellee U.S. Bank Trust National Association, as Trustee of the Chalet Series

IV Trust, has filed a motion to dismiss the appeal of the trial court’s August 11, 2020

final judgment by Appellants Judy DeLaGarza and Thomas M. DeLaGarza. In its

motion, Appellee points out that Appellants’ late-filed notice of appeal deprives this

court of jurisdiction. See Tex. R. App. P. 26.1(a)(2) (requiring notice of appeal to be

filed within 90 days after judgment’s signing if any party timely files a motion to

modify the judgment); Cummings v. Billman, No. 02-20-00034-CV, 2020 WL 938172, at

*2 (Tex. App.—Fort Worth Feb. 27, 2020, no pet.) (“A timely-filed notice of appeal is

required in order to invoke the appellate court’s jurisdiction.”).

Because Appellants filed a timely motion to modify the judgment, their notice

of appeal was due November 9, 2020. See Tex. R. App. P. 26.1(a)(2). However, they

did not file their notice of appeal by that date. And they did not file their notice of

appeal by November 24, 2020, notwithstanding the fifteen-day extension of time that

is implied in civil cases. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997).

Appellants did not file their notice of appeal until December 9, 2020. On the same

day that they filed their notice of appeal, they also filed a late motion for extension of

time citing the COVID-19 pandemic as the reason for the delay.

Once the period for granting a motion for an extension of time under Texas

Rule of Appellate Procedure 26.3 has passed, a party can no longer invoke the

appellate court’s jurisdiction. See id.; see also Twenty-First Emergency Order Regarding the

2 Covid-19 State of Disaster, Misc. Docket No. 20-9091, ¶ 3 (Tex. July 31, 2020) (stating

that order’s extension of civil case deadlines “does not include deadlines for

perfecting appeal”); Eighteenth Emergency Order Regarding the Covid-19 State of Disaster,

Misc. Docket No. 20-9080, ¶ 11 (Tex. June 29, 2020) (same); Seventeenth Emergency

Order Regarding the Covid-19 State of Disaster, Misc. Docket No. 20-9071, ¶ 11 (Tex. May

26, 2020) (same); Twelfth Emergency Order Regarding the Covid-19 State of Disaster, Misc.

Docket No. 20-9059, ¶ 5 (Tex. Apr. 27, 2020) (same); Eighth Emergency Order Regarding

the Covid-19 State of Disaster, Misc. Docket No. 20-9051, ¶ 3 (Tex. Apr. 1, 2020)

(same).1 Accordingly, we grant Appellee’s motion and dismiss the appeal for want of

jurisdiction.

/s/ Bonnie Sudderth Bonnie Sudderth Chief Justice

Delivered: January 14, 2021

Electronic filing has been mandatory for all attorneys filing civil cases in the 1

courts of appeals since January 1, 2014—long before the COVID-19 pandemic. See Amended Order Requiring Electronic Filing in Certain Courts, Misc. Docket No. 13-9164, ¶¶ 1–2 (Tex. Dec. 9, 2013).