Roberta Porch, Individually and as Surviving Spouse and Heir to the Estate of Reginald Porch v. Daimler Trucks North America, LLC, D/B/A Freightliner Truck

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-20-00445-CV

Roberta Porch, Individually and as Surviving Spouse and heir to the Estate of Reginald Porch, Appellant

v.

Daimler Trucks North America, LLC, d/b/a Freightliner Truck, Appellee

FROM THE 53RD DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-14-005360, THE HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING

MEMORANDUM OPINION

Appellant Roberta Porch seeks to appeal a final judgment signed by the trial court

on May 11, 2020. Because Porch timely filed a motion for new trial, the deadline for her to

perfect her appeal by filing a notice of appeal in this Court was August 10, 2020. See Tex. R.

App. P. 26.1(a) (providing that notice of appeal must be filed within 90 days after judgment is

signed when party timely files motion for new trial). Porch did not file her notice of appeal until

September 4, 2020.

Recognizing that her notice of appeal appears to be untimely, Porch has now filed

a motion requesting that we extend the deadline for filing her notice of appeal by 26 days, until

September 4. The motion is opposed by the appellee, Daimler Trucks North America, LLC, who

points out that under the rules of appellate procedure, the deadline for Porch to file a motion for

extension of time was August 25, 2020, and that she did not file her motion for extension of time until September 14, 2020. See Tex. R. App. P. 26.3 (notice-of-appeal deadline may be extended

if, within 15 days after deadline, appellant files notice of appeal in trial court and files proper

motion for extension of time in appellate court). In addition, because Porch did not file her

notice of appeal until after August 25, the notice of appeal itself cannot serve as an implied

motion for extension of time. See Verburgt v. Dorner, 959 S.W.2d 615 (Tex. 1997) (explaining

that motion for extension of time under Rule 26.3 is implied when notice of appeal is filed within

15-day extension period).

In response, Porch does not dispute that her motion for extension of time is

untimely under the rules of appellate procedure. Instead, Porch argues that independent of the

rules of appellate procedure, the Texas Supreme Court has granted appellate courts the authority

to extend appellate deadlines, including the filing of a notice of appeal. In support of this

argument, Porch relies on the Texas Supreme Court’s Twenty-Second Emergency Order Regarding

the COVID-19 State of Disaster, Misc. Docket No. 20-9095 (Tex. August 6, 2020) (available at

https://www.txcourts.gov/supreme/administrative-orders) (extending expiration of prior relevant

orders to September 30, 2020). That emergency order provides, in relevant part, that:

1. Governor Abbott has declared a state of disaster in all 254 counties in the State of Texas in response to the imminent threat of the COVID-19 pandemic. This order is issued pursuant to Section 22.0035(b) of the Texas Government Code.

2. Subject only to constitutional limitations, all courts in Texas may in any case, civil or criminal—and must to avoid risk to court staff, parties, attorneys, jurors, and the public—without a participant’s consent:

a. Modify or suspend any and all deadlines and procedures, whether prescribed by statute, rule, or order, for a stated period ending no later than 30 days after the Governor’s state of disaster has been lifted . . . .

2 Id. (emphasis added). Unlike the prior COVID-19-related emergency orders issued by the Texas

Supreme Court, the Twenty-Second Emergency Order does not include or incorporate language

automatically extending “any deadline for the filing of” civil cases but excluding “deadlines for

perfecting appeal or for other appellate proceedings, requests for relief from which should be

directed to the court involved and should be generously granted.” See, e.g., Eighteenth Emergency

Order Regarding the COVID-19 State of Disaster, Misc. Docket No. 20-9080 (Tex. June 29,

2020) (available at https://www.txcourts.gov/supreme/administrative-orders).

Assuming without deciding that the Twenty-Second Emergency Order grants this

Court the discretion to extend appellate deadlines, as Porch suggests, we decline to exercise our

discretion to do so in this case. See Jones v. White, No. 02-20-00198-CV, 2020 Tex. App.

LEXIS 7716, at *2 (Tex. App.—Fort Worth Sept. 24, 2020, no pet. h.) (concluding that Twenty-

Second Emergency Order gives appellate courts discretion to modify or suspend appellate

deadlines). In her motion for extension of time, Porch explains that she did not file her notice

of appeal until September 4 because “[her] counsel has been faced with working under the

restrictions imposed by the state, county, and city orders related to the current public health

crisis. In addition, . . . there was a delay in [Daimler Truck’s] receiving the trial transcript from

the court reporter, whereby delaying [its] ability to respond to the motion for new trial and

therefore, the hearing on the motion for new trial occurred after the date to perfect appeal.”

Similarly, in her reply to Daimler Truck’s response to her motion, Porch argues that COVID-19

has “greatly affected” appellant’s counsel, including “restrictive office hours, a reduction in staff,

and a reduction of personnel available to work on all legal matters for all clients.” Based on

Porch’s stated reasons for her delay, we cannot conclude that her failure to timely file her notice

of appeal or her motion for extension of time is due to the COVID-19 public-health crisis. See

3 id. (“[T]he fact of the pandemic, standing alone, is not a reasonable explanation for a missed

appellate deadline.”).

Porch’s motion for extension of time to file her notice of appeal is denied.

Because a late-filed notice of appeal does not confer jurisdiction on this Court, we dismiss the

appeal for want of jurisdiction. See In re United Servs. Auto Ass’n, 307 S.W.3d 299, 307 (Tex.

2010) (orig. proceeding) (explaining that requirement of timely notice of appeal is jurisdictional).

__________________________________________ Chari L. Kelly, Justice

Before Chief Justice Rose, Justices Baker and Kelly

Dismissed for Want of Jurisdiction

Filed: December 3, 2020