Terence Daniels v. Charles Schwab Inc.

Opinion

Appeal Dismissed and Memorandum Opinion filed March 18, 2021.

In The

Fourteenth Court of Appeals

NO. 14-21-00071-CV

TERENCE DANIELS, Appellant V. CHARLES SCHWAB INC., Appellee

On Appeal from the 400th District Court Fort Bend County, Texas Trial Court Cause No. 20-DCV-272672

MEMORANDUM OPINION

This is an attempted appeal from a final judgment signed on September 28, 2020. Appellant timely filed a motion for new trial on October 16, 2020.

The notice of appeal must be filed within 90 days after the judgment is signed when a timely post-judgment motion is filed. See Tex. R. App. P. 26.1(a)(1). The ninetieth day after the judgment was signed was Sunday, December 27, 2020. The deadline was extended to Monday, December 28, 2020. Tex. R. App. P. 4.1(a). Appellant did not file his notice of appeal until February 4, 2021. 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 grace period provided by Rule 26.3 for filing a motion for extension of time. See Verburgt v. Dorner, 959 S.W.2d 615, 617–18 (1997) (construing the predecessor to Rule 26). Appellants’ notice of appeal was not filed within the 15-day period provided by Rule 26.3.

A court of appeals lacks jurisdiction to hear an appeal that was not timely perfected. When the court lacks jurisdiction, it must dismiss the appeal. See Baker v. Baker, 469 S.W.3d 269, 272 (Tex. App.—Houston [14th Dist.] 2015, no pet.).

On February 1, 2021, we notified the parties of the court’s intention to dismiss the appeal for lack of jurisdiction unless, within 10 days, any party showed meritorious grounds for continuing the appeal. See Tex. R. App. P. 42.3(a). Appellant did not respond to the notice directly, but he filed a “Motion for Reconsideration of Appeal.” The motion fails to demonstrate we have jurisdiction.

The appeal is dismissed for lack of jurisdiction.

PER CURIAM

Panel consists of Justices Wise, Zimmerer, and Poissant.