Joel Mallory Junior v. West Bellfort Property Owners Association ( 2015 )

Opinion issued July 9, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00936-CV
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JOEL D. MALLORY, JR., Appellant
V.
WEST BELLFORT PROPERTY OWNERS ASSOCIATION, Appellee
On Appeal from the County Civil Court at Law No. 4
Harris County, Texas
Trial Court Case No. 1039665
MEMORANDUM OPINION
Appellant, Joel D. Mallory, Jr. (“Mallory”), proceeding pro se, seeks to
appeal from the trial court’s order denying his motion for new trial, signed on
October 21, 2014, and from the trial court’s order granting the appellee’s no-
evidence motion for summary judgment, signed on August 6, 2014. The appellee,
West Bellfort Property Owners Association (“WBPOA”), has filed a motion to
dismiss the appeal for want of jurisdiction contending that the notice of appeal was
untimely. We agree, grant the motion, and dismiss the appeal.
On October 21, 2013, Mallory filed his petition against WBPOA contending
that WBPOA had engaged in debt collection activities against Mallory for
homeowner dues and had threatened to take foreclosure action against his property,
allegedly in violation of the Texas Debt Collection Practices Act (“DCPA”) and
the Texas Deceptive Trade Practices Act (“DTPA”). See TEX. FIN. CODE ANN.
§§392.304(a)(8), (19) (West Supp. 2014); TEX. BUS. & COM. CODE ANN.
§17.50(a)(3) (West Supp. 2014). On August 6, 2014, the trial court signed an
order granting WBPOA’s no-evidence motion for summary judgment and
dismissing with prejudice Mallory’s claims under the DCPA and DTPA. After
Mallory timely moved for a new trial, the trial court denied his motion for new trial
in an order signed on October 21, 2014. Mallory filed his notice of appeal of both
orders on November 20, 2014.
This Court only has jurisdiction over final, appealable judgments or
appealable interlocutory orders. See TEX. CIV. PRAC. & REM. CODE ANN.
§§51.012, 51.014(a)(1)–(12) (West Supp. 2014); Stary v. DeBord, 967 S.W.2d
352, 352–53 (Tex. 1998). “A judgment is final ‘if and only if either it actually
disposes of all claims and parties then before the court, regardless of its language,
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or it states with unmistakable clarity that it is a final judgment as to all claims and
all parties.’” In re Vaishangi, Inc., 442 S.W.3d 256, 259 (Tex. 2014) (quoting,
inter alia, Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192–93 (Tex. 2001)). The
trial court’s August 6, 2014 order granting WBPOA’s no-evidence motion for
summary judgment was a final judgment because, despite its language, it disposed
of all claims and parties before the court by dismissing the only two claims raised
in the petition. See id.; see also Lehmann, 39 S.W.3d at 192–93, 206.
Generally, a notice of appeal is due within thirty days after the final
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).
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Here, the trial court signed the final judgment dismissing Mallory’s action
on August 6, 2014, making the deadline for filing a notice of appeal September 6,
2014. See TEX. R. APP. P. 26.1. Mallory timely filed a motion for new trial on
August 26, 2014, extending his deadline for filing the notice of appeal to
November 4, 2014. See TEX. R. CIV. P. 329b(a); TEX. R. APP. P. 26.1(a)(1).
Although the trial court did not ruled on the motion for new trial until October 21,
2014, the deadline to file a notice of appeal was not extended beyond November 4,
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.) (mem. op.)
(holding 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 did not file his notice of appeal in the trial court until November
20, 2014, which was one day past the fifteen-day extension period ending on
November 19, 2014. See TEX. R. APP. P. 26.3(a). Appellant neither filed 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); Naaman, 126
S.W.3d at 74; Verburgt, 959 S.W.2d at 617–18.
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On March 17, 2015, the Clerk of this Court notified Mallory that his appeal
was subject to dismissal for want of jurisdiction unless he responded, within
fourteen days of the Clerk’s notice, and showed how this Court had jurisdiction
over this appeal. Although Mallory failed to file a timely response, he filed a brief
on the merits on April 27, 2015, but that brief failed to address the jurisdictional
notice. See TEX. R. APP. P. 42.3(c).
On June 2, 2015, WBPOA moved to dismiss this appeal for want of
jurisdiction. On June 9, 2015, Mallory filed a response to the motion to dismiss
claiming that he had misunderstood that the trial court’s denial of his motion for
new trial had no impact on the appellate deadline, which he contended was a
reasonable explanation. In any event, Mallory further contended that his notice of
appeal was filed within the fifteen-day extension window under rule 26.3, thereby
implying a motion for extension of time and making his notice of appeal timely.
However, Mallory’s response does not adequately show that this Court has
jurisdiction over his appeal. As noted above, Mallory’s notice of appeal was filed
on November 20, 2014, which was one day past the fifteen-day extension window
ending on November 19, 2014. See TEX. R. APP. P. 26.3(a). Because the notice of
appeal was untimely filed, a motion for extension of time to file the notice of
appeal cannot be implied. See TEX. R. APP. P. 26.3(b); Naaman, 126 S.W.3d at 74;
Verburgt, 959 S.W.2d at 617–18; see also Russell & Smith Ford, Inc. v. Universal
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Underwriters of Tex. Ins. Co., No. 01-12-00441-CV, 2012 WL 3629043, at *1
(Tex. App.—Houston [1st Dist.] Aug. 23, 2012, no pet.) (mem. op.) (citing
Verburgt, 959 S.W.2d at 617) (“Once the fifteen-day period for granting a motion
for extension of time has passed, a party can no longer invoke the appellate court’s
jurisdiction.”). Without a timely filed notice of appeal, this Court lacks jurisdiction
over the appeal. See TEX. R. APP. P. 25.1.
Accordingly, we grant WBPOA’s motion and dismiss the appeal for want
of jurisdiction. See TEX. R. APP. P. 42.3(a), (c); 43.2(f). We dismiss any other
pending motions as moot.
PER CURIAM
Panel consists of Chief Justice Radack and Justices Higley and Massengale.
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