Vozarron, Inc. v. Harris County Appraisal District

Opinion

Opinion issued September 29, 2016

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-16-00224-CV ——————————— VOZARRON, INC., Appellant V. HARRIS COUNTY APPRAISAL DISTRICT, Appellee

On Appeal from the 164th District Court Harris County, Texas Trial Court Case No. 2009-57592

MEMORANDUM OPINION Appellant, Vozarron, Inc., attempts to appeal from the final judgment of the

trial court, signed on January 5, 2016. In response to the Court’s orders notifying

appellant that this appeal was subject to dismissal for want of jurisdiction, because

the March 4, 2016 notice of appeal appeared untimely, or for want of prosecution for failure to pay all required fees, appellant filed a motion to retain this case in this

Court. We dismiss the appeal for want of jurisdiction and dismiss this motion as

moot.

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 ninety days after the date the judgment is signed if, within thirty days after the

judgment is signed, any party timely 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. See id. 26.1(a); TEX. R. CIV. P. 329b(a), (g).

The time to file a notice of appeal may also be extended if, within fifteen 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 fifteen-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).

Here, the trial court signed the final judgment on January 5, 2016, ordering

appellant to pay a certain amount of property tax. Appellant did not file any post-

judgment motions, which made February 4, 2016, its deadline for filing a notice of

appeal. See TEX. R. APP. P. 26.1(a)(1).

2 Appellant’s notice of appeal was not filed in the trial court until March 14,

2016, which was thirty-nine days past the February 4, 2016 deadline for filing the

notice of appeal, and twenty-four days past the fifteen-day extension period ending

on February 19, 2016. See TEX. R. APP. P. 26.1(a)(1), 26.3(a). Appellant did not

file a motion for extension of time to file the notice of appeal, nor can one be implied

because the notice of appeal was untimely filed. See id. 26.3(b); Verburgt, 959

S.W.2d at 617–18. Without a timely filed notice of appeal, this Court lacks

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

On April 28, 2016, the Clerk of this Court notified appellant’s counsel that

this appeal was subject to dismissal for want of jurisdiction unless he timely

responded and showed how this Court had jurisdiction over this appeal. See TEX. R.

APP. P. 42.3(a), (c). In response, appellant’s counsel filed an affidavit of indigence

in this Court on May 23, 2016, which was forwarded to the trial court, and the trial

court sustained a contest to the affidavit of indigence. On July 14, 2016, after

appellant failed to timely file a motion to review the trial court’s order sustaining a

contest to its affidavit of indigence, this Court ordered appellant to pay the filing and

clerk’s record fees within thirty days or else this appeal would be subject to dismissal

for want of prosecution. See TEX. R. APP. P. 42.3(b).

Because appellant’s counsel claimed that he needed time to contact the district

clerk to obtain hard copy records of his motion for new trial, this Court granted two

3 extensions. Then appellant filed this “Motion to Retain Case on Appeal and

Response to ‘Orders on Motions’ Dated August 18, 2016, Including Request for

Court Order to District Clerk” in this Court. Although appellant’s counsel timely

filed a response, he failed to show grounds for this Court’s jurisdiction over this

appeal. Instead, appellant’s counsel claimed, among other things, that when he

recently visited the district clerk’s office, he was told that they did not know what

had happened to the hard copy of his motion for new trial because there was no

electronic filing of it and that he could not see his motion for new trial in the district

clerk’s computer. However, appellant’s response does not show how this Court has

jurisdiction over this untimely appeal.

Conclusion Accordingly, we dismiss the appeal for want of jurisdiction. See TEX. R. APP.

P. 42.3(a); 43.2(f). We dismiss all pending motions as moot.

PER CURIAM Panel consists of Chief Justice Radack and Justices Higley and Huddle.