Myrmac Corporation A/K/A McDonald's Corp. v. Michelle VanBrocklin

• Court: Court of Appeals of Texas
• Decided: December 7, 2023
• Docket: 02-23-00409-CV
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-23-00409-CV ___________________________

MYRMAC CORPORATION A/K/A MCDONALD’S CORP., Appellant

V.

MICHELLE VANBROCKLIN, Appellee

On Appeal from the 43rd District Court Parker County, Texas Trial Court No. CV21-0299

Before Birdwell, Bassel, and Womack, JJ. Per Curiam Memorandum Opinion MEMORANDUM OPINION

Appellant Myrmac Corporation a/k/a McDonald’s Corp. attempts to appeal

from a final judgment entered against it following a jury trial. The trial court entered

its judgment on the jury’s verdict on June 30, 2023. Appellant filed a timely motion

for new trial, then it filed its notice of appeal on October 30, 2023.

Generally, a notice of appeal must be filed within thirty days after the date the

judgment is signed, but certain post-judgment motions can extend that deadline to

ninety days. See Tex. R. App. P. 26.1(a) (“[T]he notice of appeal must be filed within

90 days after the judgment is signed if any party files . . . a motion for new trial[ or] a

motion to modify the judgment[.]”); see also Tex. R. Civ. P. 329b (stating that filing a

motion for new trial or motion to modify extends the trial court’s plenary power). An

appellate court may grant an additional fifteen-day extension of time to file the notice

of appeal. See Tex. R. App. P. 26.3; Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex.

1997). Thus, in a typical civil case, a party who wishes to appeal could take as long as

105 days from the date the judgment is signed to file a notice of appeal. See Tex. R.

App. P. 26.1, 26.3; Poard v. Webb, No. 02-22-00262-CV, 2022 WL 3464863, at *1 (Tex.

App.—Fort Worth Aug. 18, 2022, no pet.) (per curiam) (mem. op.); see also Verburgt,

959 S.W.2d at 617 (citing Rule 26.3 and holding motion for extension of time is

necessarily implied when appellant, acting in good faith, files a document attempting

to perfect appeal beyond time allowed by appellate rules but within fifteen-day period

in which appellant would be entitled to move to extend filing deadline).

2 Because Appellant timely filed a motion for new trial, the notice of appeal was

due no later than September 28, 2023. See Tex. R. App. P. 26.1(a); see also Tex. R. Civ.

P. 329b(a) (“A motion for new trial . . . shall be filed prior to or within thirty days

after the judgment or other order complained of is signed.”). Appellant did not move

to extend that deadline. See Tex. R. App. P. 10.5(b)(1)(C), 26.3; Verburgt, 959 S.W.2d at

617; Poard, 2022 WL 3464863, at *1. Even if it had, however, Appellant could not

have extended the notice-of-appeal deadline beyond October 13, 2023. See Tex. R.

App. P. 26.3. Appellant’s October 30, 2023 notice of appeal was therefore untimely.

On October 31, 2023, we notified Appellant that this court was concerned that

we did not have jurisdiction over the appeal because the notice of appeal was not

timely filed. We warned Appellant that unless it filed a response by November 10,

2023, showing grounds for continuing the appeal, we could dismiss it. See Tex. R.

App. P. 42.3(a), 44.3. We have received no response.

Because Appellant’s October 30, 2023 notice of appeal was untimely, we

dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a), 43.2(f).

Per Curiam

Delivered: December 7, 2023