William A. Baldwin v. LPP Mortgage Ltd ( 2015 )

Opinion issued June 30, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-15-00020-CV
———————————
WILLIAM A. BALDWIN, Appellant
V.
LPP MORTGAGE LTD., Appellee
On Appeal from the 295th Judicial District Court
Harris County, Texas
Trial Court Case No. 2010-22793
MEMORANDUM OPINION
Appellant, William A. Baldwin, proceeding pro se, seeks to appeal an order
of the trial court denying his motion for new trial after the trial court’s final
judgment, signed on June 23, 2014, granted the appellee’s motion for summary
judgment. The appellee, LPP Mortgage LTD., has filed a motion to dismiss the
appeal for want of jurisdiction contending that the appeal was untimely. We agree,
grant the motion, and dismiss the appeal.
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. at 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 granting the appellee’s motion
for summary judgment by disposing of all claims and parties on June 23, 2014,
making July 23, 2014, the appellant’s deadline for filing a notice of appeal. See
TEX. R. APP. P. 26.1. Appellant timely filed a motion for new trial on July 23,
2014, extending his deadline for filing the notice of appeal until September 22,
2
2014. See TEX. R. CIV. P. 329b(a); TEX. R. APP. P. 4.1(a), 26.1(a)(1). Although the
motion for new trial was not ruled upon until December 22, 2014, the deadline to
file a notice of appeal from the final judgment was not extended beyond September
22, 2014. See Naaman v. Grider, 126 S.W.3d 73, 74 (Tex. 2003); Garza v.
Hibernia Nat’l Bank, 227 S.W.3d 233, 233 n.1, 234 (Tex. App.—Houston [1st
Dist.] 2007, no pet.); Powell v. Linh Nutrition Programs, Inc., No. 01-03-00919-
CV, 2005 WL 375334, at *1 (Tex. App.—Houston [1st Dist.] Feb. 17, 2005, no
pet.) (holding that deadline for appealing from trial court’s order denying motion
for new trial runs from date of signing of final judgment, not from date of order
denying motion for new trial).
Appellant’s notice of appeal was not filed in the trial court until January 9,
2015, which was 109 days past the September 22, 2014 deadline for filing his
notice of appeal, and 94 days past the fifteen-day extension period ending on
October 7, 2014. 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 TEX. R. APP. P. 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 February 9, 2015, the appellee moved to dismiss this appeal for want of
jurisdiction. On March 17, 2015, the Clerk of this Court notified the appellant that
3
this appeal was subject to dismissal for want of jurisdiction unless he responded to
the appellee’s motion to dismiss this appeal, within fourteen days of the Clerk’s
notice, and showed how this Court had jurisdiction over this appeal. Although the
appellant timely filed a response, claiming that the final judgment was void and
could be appealed at any time because the trial court had improperly relied on a
summary order of foreclosure that he claimed was also void, his response did not
adequately show that this Court has jurisdiction over his untimely appeal.
Accordingly, we grant the appellee’s motion and dismiss the appeal for
want of jurisdiction. See TEX. R. APP. P. 42.3(a); 43.2(f). We dismiss any other
pending motions as moot.
PER CURIAM
Panel consists of Chief Justice Radack and Justices Higley and Massengale.
4