Nail Road 1, LP v. Dallas County

• Court: Court of Appeals of Texas
• Decided: April 9, 2021
• Docket: 05-20-00537-CV
• Status: Published

Opinion

DISMISS and Opinion Filed April 9, 2021

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-20-00537-CV

NAIL ROAD 1, L.P., Appellant V. DALLAS COUNTY, TEXAS, Appellee

On Appeal from the 160th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-18-17321

MEMORANDUM OPINION Before Justices Osborne, Pedersen, III, and Nowell Opinion by Justice Osborne This appeal challenges the trial court’s order denying appellant’s motion to

reinstate the underlying suit, which appellant voluntarily nonsuited. Because the

notice of appeal was not timely filed, we dismiss the appeal for want of jurisdiction.

See TEX. R. APP. P. 42.3(a).

To ensure simplicity and certainty in determining the time for perfecting an

appeal, the Texas Rules of Appellate Procedure calculate the deadline for filing a

notice of appeal from the date the final judgment is signed. See TEX. R. APP. P. 26.1;

Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001) (“Simplicity and certainty in appellate procedure are nowhere more important than in determining the

time for perfecting appeal.”). When a post-judgment motion such as a motion to

reinstate or motion for new trial is filed, the deadline is ninety days, or with an

extension motion 105 days, from the date the judgment is signed. See id. 26.1(a),

26.3. An order denying a post-judgment motion such as a motion to reinstate or

motion for new trial is not separately appealable from the final judgment and does

not start the appellate timetable. See Jarrell v. Bergdorf, 580 S.W.3d 463, 465 (Tex.

App.—Houston [14th Dist.] 2019, no pet.).

The notice of appeal here was filed within thirty days of the order denying the

motion to reinstate but 124 days after the order of nonsuit. Because the notice of

appeal appeared untimely, we questioned our jurisdiction over the appeal and

directed the parties to file letter briefs addressing our concern. See Brashear v.

Victoria Gardens of McKinney, L.L.C., 302 S.W.3d 542, 545 (Tex. App.—Dallas

2009, no pet.) (timely filing of notice of appeal is jurisdictional).

Appellant argues in its jurisdictional brief that because the underlying suit was

voluntarily nonsuited, the operative order is the order denying reinstatement and the

deadline for filing the notice of appeal was the date the trial court’s plenary

jurisdiction over the case expired–-thirty days after the order denying reinstatement

was signed. See TEX. R. CIV. P. 329b(e) (trial court retains plenary power over case

for thirty days after all post-judgment motions are overruled by operation of law or

written order, whichever occurs first). Appellant appears to reason that the order

–2– denying reinstatement should trigger the appellate deadlines because that is the basis

for the appeal, not the voluntary nonsuit.

Having an appellate deadline unique to appeals that follow voluntary nonsuits

affords no certainty or simplicity. As noted above and argued by appellee in its

responsive letter brief, the appellate rules expressly provide the deadline runs from

the signing of the judgment, not the order denying the post-judgment motion. See

TEX. R. APP. P. 26.1; Jarrell, 580 S.W.3d at 465.

As the notice of appeal here was not filed within 105 days of the signing of

the judgment–-the order of nonsuit, it was not timely, and we lack jurisdiction over

the appeal. See Brashear, 302 S.W.3d at 545. Accordingly, we dismiss the appeal.

/Leslie Osborne/ LESLIE OSBORNE JUSTICE 200537F.P05

–3– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

NAIL ROAD 1, L.P., Appellant On Appeal from the 160th Judicial District Court, Dallas County, Texas No. 05-20-00537-CV V. Trial Court Cause No. DC-18-17321. Opinion delivered by Justice DALLAS COUNTY, TEXAS, Osborne, Justices Pedersen, III and Appellee Nowell participating.

In accordance with this Court’s opinion of this date, we DISMISS the appeal.

We ORDER that appellee Dallas County, Texas recover its costs, if any, of this appeal from appellant Nail Road 1, L.P.

Judgment entered April 9, 2021.

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