Todd Phillippi v. Citi Residential Lending, Inc., Argent Securities, Inc., Detsche Bank, and National Trust Bank ( 2012 )

WITHDRAWN 4-11-13
IN THE
TENTH COURT OF APPEALS
No. 10-12-00302-CV
TODD PHILLIPPI,
Appellant
v.
CITI RESIDENTIAL LENDING, INC., ET AL,
Appellees
From the County Court at Law
Ellis County, Texas
Trial Court No. C-08-3657
MEMORANDUM OPINION
Appellees Citi Residential Lending, Inc. (Citi) and Deutsche Bank National Trust
Company, as Trustee, in Trust for the Registered Holders of Argent Securities, Inc.
Asset-Backed Pass-Through Certificates, Series 2004-W8 (Deutsche Bank) have filed
motions to dismiss this appeal for want of jurisdiction, arguing that Appellant Todd
Phillippi’s notice of appeal was untimely filed. Because Phillippi did not timely file a
post-judgment motion that extended the appellate timetable, his notice of appeal was
untimely, and we lack jurisdiction.
The relevant procedural history is as follows:
 On April 2, 2012, the trial court signed an order granting Citi’s no evidence and
traditional motions for summary judgment. Pursuant to the order, Phillippi took
nothing by his claims against Citi, and all of Phillippi’s claims against Citi were
dismissed with prejudice.
 On April 26, 2012, the trial court signed an order granting Deutsche Bank’s
motion for summary judgment. Pursuant to the order, Phillippi took nothing by
his claims against Deutsche Bank, and all claims against Deutsche Bank were
dismissed with prejudice.
 On May 2, 2012, Phillippi filed a “Motion to Set Aside or Rehearing on Order of
Summary Judgment.” Phillippi requested in the motion that Citi’s summary
judgment be set aside and that he be granted a new trial because he was not
properly served and thus had no notice of Citi’s motions for summary judgment
or of the summary judgment hearing.
 On May 11, 2012, the trial court signed an order granting Deutsche Bank’s
motion to dismiss without prejudice, which dismissed without prejudice
Deutsche Bank’s counterclaims. The order also stated: “It is further ordered the
summary judgments entered in favor of Citi . . . on April 2, 2012 and
Defendant/Counter-plaintiff Deutsche Bank . . . on April 26, 2012 are now final.”
This order was the final judgment for appellate purposes. See Jack B. Anglin Co. v.
Tipps, 842 S.W.2d 266, 272 (Tex. 1992) (“A final judgment is one which disposes
of all legal issues between all parties.”).
 On June 13, 2012, Phillippi filed a “First Amended Motion to Set Aside or
Rehearing on Order of Summary Judgment(s).” Phillippi requested in the
motion that the final judgment, which finalized the earlier summary judgments
in favor of Citi and Deutsche Bank, be set aside and that he be granted a new trial
because of the service issues referred to above.
 On August 13, 2012, Phillippi filed his notice of appeal with the trial court clerk.
The notice states: “Plaintiff in this matter, TODD PHILLIPPI hereby Appeals the
final orders in this cause. The matter having been finally order [sic] on May 14,
2012. This Appeal being timely filed all matters of Summary Judgment and final
Orders dispensing with this Cause are hereby Appealed.”1
1 Phillippi stated in his First Amended Motion to Set Aside or Rehearing on Order of Summary
Judgment(s) and in his Notice of Appeal that the trial court entered the final judgment on May 14;
however, the order was signed on May 11. It was later filed by the trial court clerk on May 14.
Phillippi v. Citi Residential Lending, Inc. Page 2
Generally, a notice of appeal is due within thirty days after the judgment is
signed. 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 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. TEX. R. APP. P. 26.1(a). The appellate
court may extend the time to file the notice of appeal if, within fifteen days after the
deadline for filing the notice of appeal, the party files the notice of appeal in the trial
court and files a motion for extension of time to file the notice of appeal in the appellate
court. TEX. R. APP. P. 26.3. Furthermore, if the notice of appeal is filed within fifteen
days of the date the notice was due but a motion for extension of time to file the notice
of appeal is not filed, the appellate court will still imply a motion for extension of time
to file a notice of appeal if the party supplies a reasonable explanation for the late filing
of the notice of appeal. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997).
In this case, Phillippi filed his notice of appeal ninety-four days after the date the
final judgment was signed. He did not file a motion for extension of time to file the
notice of appeal in the appellate court. Thus, for Phillippi’s notice of appeal to be
timely, he must have (1) timely filed a motion that extended the deadline to file a notice
of appeal to ninety days after the date the judgment was signed; and (2) supplied a
reasonable explanation for the late filing of his notice of appeal such that a motion for
extension of time to file the notice of appeal is implied. See TEX. R. APP. P. 26.1(a);
Verburgt, 959 S.W.2d at 617.
Phillippi v. Citi Residential Lending, Inc. Page 3
Although entitled “First Amended Motion to Set Aside or Rehearing on Order of
Summary Judgment(s),” we interpret the substance of Phillippi’s post-judgment motion
to be a motion for new trial. See Doctor v. Pardue, 186 S.W.3d 4, 16 (Tex. App.—Houston
[1st Dist.] 2005, pet. denied) (“[W]e look to an instrument’s substance rather than its
form.”). The issue then is whether Phillippi’s post-judgment motion was timely filed.
A motion for new trial “shall be filed prior to or within thirty days after the
judgment or other order complained of is signed.” TEX. R. CIV. P. 329b(a). The trial
court may not enlarge the period for taking any action under the rules relating to new
trials except as stated in the rules of civil procedure. TEX. R. CIV. P. 5. Similarly, the
appellate court is prohibited from construing Rule of Appellate Procedure 2 to alter the
time for perfecting an appeal in a civil case. TEX. R. APP. P. 2.
Phillippi’s “First Amended Motion to Set Aside or Rehearing on Order of
Summary Judgment(s)” was filed on June 13, 2012, thirty-three days after the final
judgment was signed on May 11, 2012, and thus was not timely filed. Moreover, in
Phillippi’s response to Citi’s and Deutsche Bank’s motions to dismiss, he does not
identify any other post-judgment motions that had been filed. But before concluding
that Phillippi did not timely file a motion that extended the deadline to file a notice of
appeal to ninety days after the date the judgment was signed, we must also examine
Phillippi’s original “Motion to Set Aside or Rehearing on Order of Summary
Judgment,” filed before the final judgment was signed. We also interpret the substance
of this motion to be a motion for new trial. See Doctor, 186 S.W.3d at 16.
Phillippi v. Citi Residential Lending, Inc. Page 4
A motion for new trial filed before judgment “shall be deemed to have been filed
on the date of but subsequent to the time of signing of the judgment the motion assails. .
. .” TEX. R. CIV. P. 306c. Further, an appellate court may treat actions taken before an
appealable order is signed as relating to an appeal of that order and give them effect as
if they had been taken after the order was signed. TEX. R. APP. P. 27.2. Thus, a
premature motion for new trial can extend the appellate timetable. S. Tex. GMAC Real
Estate v. Cohyco, Inc., 124 S.W.3d 321, 325 (Tex. App.—Corpus Christi 2003, no pet.). But
if a trial court modifies a judgment after a motion for new trial has been filed, a second
motion is necessary to extend the deadlines if the first motion does not “assail” the
modified judgment. Id.
Phillippi’s original “Motion to Set Aside or Rehearing on Order of Summary
Judgment,” filed on May 2, 2012, before the final judgment was signed, challenged only
the summary judgment in favor of Citi. It did not mention Deutsche Bank—neither the
summary judgment in favor of Deutsche Bank on April 26, 2012, nor the final order
dismissing Deutsche Bank’s counterclaims without prejudice on May 11, 2012. Thus,
Phillippi’s original “Motion to Set Aside or Rehearing on Order of Summary Judgment”
did not “assail” the final judgment. See id.; see also Healthsouth Med. Ctr. v.
PricewaterhouseCoopers L.L.P., No. 05-06-01041-CV, 2007 WL 2460082, at *2 (Tex. App.—
Dallas Aug. 31, 2007, pet. denied) (mem. op.). And it did not extend the deadline to file
a notice of appeal from the May 11, 2012 final order. See S. Tex. GMAC Real Estate, 124
S.W.3d at 325; see also Healthsouth Med. Ctr., 2007 WL 2460082, at *2.
Phillippi v. Citi Residential Lending, Inc. Page 5
Because Phillippi did not timely file a motion that extended the deadline to file a
notice of appeal to ninety days after the date the judgment was signed, Phillippi’s notice
of appeal was untimely filed. See TEX. R. APP. P. 26.1. We need not address whether
Phillippi supplied a reasonable explanation for the late filing of his notice of appeal
such that a motion for extension of time to file the notice of appeal is implied. See
Verburgt, 959 S.W.2d at 617.
We grant Citi’s and Deutsche Bank’s motions to dismiss and dismiss this appeal
for want of jurisdiction.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Motions granted, appeal dismissed
Opinion delivered and filed December 6, 2012
[CV06]
Phillippi v. Citi Residential Lending, Inc. Page 6