William Bryer v. Millennium Restaurants Groups Inc. ( 2019 )

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
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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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