Robert Charles Foran III v. Paul M. Sullivan & the Law Office of Paul M. Sullivan, PLLC

• Court: Court of Appeals of Texas
• Decided: May 25, 2023
• Docket: 01-23-00300-CV
• Status: Published

Opinion

Opinion issued May 25, 2023

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-23-00300-CV ——————————— ROBERT CHARLES FORAN, III, Appellant V. PAUL M. SULLIVAN AND THE LAW OFFICE OF PAUL M. SULLIVAN, PLLC, Appellees

On Appeal from the 189th District Court Harris County, Texas Trial Court Case No. 2022-77839

MEMORANDUM OPINION

On April 19, 2023, appellant, Robert Charles Foran, III, filed a notice of

appeal from the trial court’s January 30, 2023 order granting the motion to dismiss

of appellees Paul M. Sullivan and The Law Office of Paul M. Sullivan, PLLC under

Texas Rule of Civil Procedure 91a. We dismiss the appeal for lack of jurisdiction.

On April 20, 2023, appellees filed a “Motion to Dismiss Appeal for Want of

Jurisdiction,” asserting that appellant’s notice of appeal was not timely filed. Absent

a timely filed notice of appeal, we lack jurisdiction over an appeal. See TEX. R. APP.

P. 25.1. Generally, a notice of appeal of a final judgment must be filed within thirty

days after the entry of judgment. See TEX. R. APP. P. 26.1. The time within which

to file a notice of appeal may be enlarged however, if, within fifteen days after the

deadline for filing the notice of appeal, an appellant files a notice of appeal in the

trial court and a motion for extension of time to file the notice of appeal in the

appellate court. See TEX. R. APP. P. 10.5(b), 26.3. Accordingly, in order to invoke

this Court’s appellate jurisdiction, appellant was required to either: file a notice of

appeal on or before March 1, 2023, or a notice of appeal and a motion for extension

of time to file a notice of appeal on or before March 16, 2023. Appellant filed his

notice of appeal on April 19, 2023.

Notably, where a party timely files certain post-judgment motions, the

deadline to file a notice of appeal is extended to ninety days after the entry of

judgment. See TEX. R. APP. P. 26.1(a)(1). Post-judgment motions generally must

be filed within thirty days after the judgment or other order complained of is signed.

See TEX. R. CIV. P. 329b(a), (g).

2 On April 20, 2023, appellant filed a “Motion to Strike Appellees’ Motion to

Dismiss Appeal for Want of Jurisdiction and Grounds for [Appellate] Jurisdiction.”

In his motion, appellant argued that he timely filed his notice of appeal because under

Texas Rule of Appellate Procedure 26.1(a)(4) the deadline to file a notice of appeal

to ninety days after the entry of the judgment if a party files “a request for findings

of fact and conclusions of law if findings and conclusions either are required by the

Rules of Civil Procedure or, if not required, could properly be considered by the

appellate court.” See TEX. R. APP. P. 26.1(a)(4). Specifically, appellant stated that

his notice of appeal was “filed . . . [seventy-nine] days after” the trial court’s January

30, 2023 order which “would be within the [ninety-day] rule.”

Although appellant’s motion refers to the extension of appellate deadlines

where a party files a request for findings of fact and conclusions of law, appellant’s

motion does not state, or otherwise establish, that he filed a request for findings of

fact and conclusions of law with the trial court. And the appellate record does not

reflect that any request for findings of fact or conclusions of law was made.

Accordingly, appellant’s deadline for filing his notice of appeal was not extended,

and appellant’s notice of appeal was due to be filed no later than March 1, 2023, or

March 16, 2023, if he filed a motion for extension of time to file his notice of appeal.

See TEX. R. APP. P. 26.1(a)(1), 26.3.

3 Appellant did not file his notice of appeal until April 19, 2023, which was

seventy-nine days after entry of the trial court’s January 30, 2023 order. Because

appellant failed to file a timely notice of appeal, we lack jurisdiction over his appeal.

Accordingly, we grant appellees’ motion, and dismiss the appeal for lack of

jurisdiction. See TEX. R. APP. P. 42.3(a), 43.2(f). All other pending motions are

dismissed as moot.

PER CURIAM

Panel consists of Chief Justice Adams and Justices Guerra and Farris.