Peter Nguyen, Tan Dang, Hoan Nguyen, and Hoang Pham v. Saigon Condos

• Court: Court of Appeals of Texas
• Decided: May 1, 2014
• Docket: 01-12-00871-CV
• Status: Published

Opinion

Opinion issued May 1, 2014

In The Court of Appeals For The First District of Texas

NO. 01-12-00871-CV

PETER NGUYEN, TAN DANG, HOAN NGUYEN, AND HOANG PHAM, Appellants

V.

SAIGON CONDOS, Appellee

On Appeal from the 270th District Court Harris County, Texas Trial Court Cause No. 2011-00969

MEMORANDUM OPINION

1 Appellants, Peter Nguyen, Tan Dang, Hoan Nguyen, and Hoang Pham,

attempt to appeal from the trial court’s judgment signed July 27, 2012.

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 90 days after the date the judgment is signed if, within 30 days after

the judgment is signed, any party 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. Id.; TEX. R. CIV. P. 329b(a), (g). The time

to file a notice of appeal may also be extended if, within 15 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 15-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, 617–18

(Tex. 1997).

The record reflects that the trial court signed the final judgment on July 27,

2012. Appellants’ notice of appeal was therefore due by August 27, 2012. See

TEX. R. APP. P. 4.1(a), 26.1.

Appellants filed their notice of appeal and a motion to extend the deadline to

file a notice of appeal on September 11, 2012. Appellants’ motion to extend the

2 deadline and notice of appeal were both filed within the 15-day extension period.

See TEX. R. APP. P. 26.3. Appellants were still required, however, to offer a

reasonable explanation of the need for an extension. See TEX. R. APP. P.

10.5(b)(1)(C), (b)(2)(A), 26.3(b); Jones v. City of Houston, 976 S.W.2d 676, 677

(Tex. 1998). Appellants offered no explanation of the need for an extension in

their motion or their notice of appeal, nor did appellants show that their failure to

timely file the notice of appeal was not deliberate or intentional. See id. at 677;

Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 669 (Tex. 1989); Smith v.

Houston Lighting & Power Co., 7 S.W.3d 287, 288 (Tex. App.—Houston [1st

Dist.] 1999, no pet.). Because appellants offered no explanation for the delay, the

notice of appeal was not timely. Without a timely filed notice of appeal, this Court

lacks jurisdiction over the appeal. See TEX. R. APP. P. 25.1.

On November 29, 2012, we notified appellants that their appeal was subject

to dismissal for want of jurisdiction unless, by December 10, 2012, they filed a

response providing a reasonable explanation for untimely filing the notice of

appeal. See TEX. R. APP. P. 10.5(b)(1)(C), (b)(2)(A), 26.1, 26.3, 42.3(a); Jones,

976 S.W.2d at 677; Verburgt, 959 S.W.2d at 617–18.

On December 18, 2012, appellant Peter Nguyen filed a motion for extension

of time, stating that he was in the process of hiring a new attorney and requesting

3 an extension to February 1, 2013. We granted the motion and required an

explanation be provided by February 1, 2013. No appellant has filed a response.

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 Chief Justice Radack and Justices Sharp and Massengale.