William Bryer v. Millennium Restaurants Groups Inc.

• Court: Court of Appeals of Texas
• Decided: August 30, 2019
• Docket: 05-19-00915-CV
• Status: Published

Opinion

DISMISS and Opinion Filed August 30, 2019

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00915-CV

WILLIAM BRYER, Appellant V. MILLENNIUM RESTAURANTS GROUPS INC., Appellee

On Appeal from the 193rd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-19-02603

MEMORANDUM OPINION Before Chief Justice Burns, Justice Molberg, and Justice Nowell Opinion by Chief Justice Burns This appeal, filed August 5, 2019, challenges the trial court’s July 9, 2019 order denying

appellant’s motion for new trial. Asserting, in part, the appeal was untimely filed, appellee has

moved to dismiss the appeal. Appellant has not filed a response.

Although a court of appeals may review an order denying a motion for new trial, the

deadline for filing a notice of appeal runs from the date the judgment is signed, not the date of the

order denying the motion. See TEX. R. APP. P. 26.1 (deadline for filing appeal runs from date of

judgment); Naaman v. Grider, 126 S.W.3d 73, 74 n. 2 (Tex. 2003) (per curiam) (same); Strackbein

v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984) (order denying motion for new trial is reviewable).

Generally, a notice of appeal must be filed within thirty days of judgment. See TEX. R. APP. P.

26.1. However, when a request for findings of fact and conclusions of law or motion for new trial, to modify judgment, or to reinstate is timely filed, the notice of appeal is due within ninety days

of judgment. See id. 26.1(a). A grace period is provided under Texas Rule of Appellate Procedure

26.3 conditioned on the notice of appeal being filed within fifteen days of the date it is due and a

motion reasonably explaining the need for an extension also being filed. See id. 26.3; Verburgt v.

Dorner, 959 S.W.2d 615, 617 (Tex. 1997).

The record here reflects the final judgment was signed April 15, 2019 and a motion for

new trial was timely filed May 13, 2019. Accordingly, the notice of appeal was due July 15, 2019

or, with an extension motion, July 30, 2019. See id. 4, 26.1(a), 26.3. Because appellant filed this

appeal beyond the deadline, we lack jurisdiction over the appeal. See Brashear v. Victoria Gardens

of McKinney, LLC, 302 S.W.3d 542, 545 (Tex. App.—Dallas 2009, no pet.) (op. on reh’g) (timely

filing of a notice of appeal is jurisdictional). Accordingly, we grant appellee’s motion and dismiss

the appeal. See TEX. R. APP. P. 42.3(a).

/Robert D. Burns, III/ ROBERT D. BURNS, III CHIEF JUSTICE

190915F.P05

–2– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

WILLIAM BRYER, Appellant On Appeal from the 193rd Judicial District Court, Dallas County, Texas No. 05-19-00915-CV V. Trial Court Cause No. DC-19-02603. Opinion delivered by Chief Justice Burns, MILLENNIUM RESTAURANTS Justices Molberg and Nowell participating. GROUPS INC., Appellee

In accordance with this Court’s opinion of this date, we DISMISS the appeal.

We ORDER that appellee Millennium Restaurants Groups Inc. recover its costs, if any, of this appeal from appellant William Bryer.

Judgment entered August 30, 2019.

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