Action Restoration, Inc. v. Kingsville Independent School District ( 2011 )

NUMBER 13-10-00675-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ACTION RESTORATION, INC., APPELLANT
v.
KINGSVILLE INDEPENDENT SCHOOL DISTRICT, APPELLEE.
On Appeal from the 105th District Court
of Kleberg County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Benavides, and Vela
Per Curiam Memorandum Opinion
Appellant, Action Restoration, Inc. appeals an order granting Kingsville
Independent School District’s plea to the jurisdiction. Currently pending before the
Court is the “Motion to Dismiss for Lack of Jurisdiction” filed by the Kingsville
Independent School District (the “District”). More than ten days have passed since this
motion was filed and appellant has not filed a response. See TEX. R. APP. P. 10.3(a).
We dismiss the appeal for lack of jurisdiction.
This appeal arises from a lawsuit filed by appellant against the District for breach
of contract and quantum meruit. The District filed a plea to the jurisdiction maintaining
that it was immune from suit against all of appellant’s claims. By written order signed on
September 9, 2010, the trial court sustained the District’s plea and dismissed the cause.
On October 8, 2010, appellant filed a “Motion for Rehearing, or in the Alternative, a
Motion for New Trial.” The trial court did not rule on this motion. On December 8, 2010,
appellant filed its notice of appeal.
Section 51.014(a)(8) of the civil practice and remedies code permits an
interlocutory appeal from an order that grants or denies a plea to the jurisdiction by a
governmental unit. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (Vernon
2008). Appeals from interlocutory orders, when allowed by statute, are accelerated
appeals. TEX. R. APP. P. 28.1. In order to perfect an accelerated appeal of an
interlocutory order, the party is required to file a notice of appeal “within 20 days after
the judgment or order is signed.” Id. at R. 26.1(b). The filing of a motion for new trial,
request for findings of fact and conclusions of law, or any other post-judgment motion,
except for a motion for extension of time filed under Texas Rule of Appellate Procedure
26.3, “will not extend the time to perfect an accelerated appeal.” Id. at R. 26.3, 28.1(b).
The trial court’s order was signed on September 9, 2010. Under the civil practice
and remedies code, the order was subject to an accelerated interlocutory appeal. See
TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8). Accordingly, appellant was required
to file its notice of accelerated appeal within twenty days of the trial court’s September
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9, 2010 order. The record does not reflect that appellant filed a motion for extension of
time under Texas Rule of Appellate Procedure 26.3. See id. at R. 26.3; see also
Houser v. McElveen, 243 S.W.3d 646, 646-47 (Tex. 2008) (stating that a notice of
appeal should be considered timely if filed within fifteen days after the filing deadline
and accompanied by a motion for extension of time with a reasonable explanation for
the delay). In addition, appellant’s motion for rehearing or new trial does not extend the
time to file the notice of appeal in an accelerated interlocutory appeal. See In re K.A.F.,
160 S.W.3d 923, 927-28 (Tex. 2005) (stating that: “a court of appeals has jurisdiction
over an appeal if the appellant timely files an instrument in a bona fide attempt to invoke
the appellate court’s jurisdiction”; (2) the filing of “the post-judgment motions listed in
Texas Rule of Appellate Procedure 26.1(a) will not operate to extend the appellate
deadline”; and (3) “[a]llowing such post-order motions to automatically delay the
appellate deadline is simply inconsistent with the idea of accelerating the appeal in the
first place.”).
We are to construe the rules of appellate procedure reasonably and liberally so
that the right to appeal is not lost by imposing requirements not absolutely necessary to
effectuate the purpose of a rule. See Verburgt v. Dorner, 959 S.W.2d 615, 616-17 (Tex.
1997). Nevertheless, we are prohibited from enlarging the scope of our jurisdiction by
enlarging the time for perfecting an appeal in a civil case in a manner not provided for
by rule. See TEX. R. APP. P. 2; In re T.W., 89 S.W.3d 641, 642 (Tex. App.–Amarillo
2002, no pet.). Because appellant’s notice of appeal was untimely, appellant has failed
to perfect its appeal and we therefore lack jurisdiction over the appeal. See In re K.A.F.,
160 S.W.3d at 928; Fed. Mut. Ins. Co., Inc. v. Davenport, 85 S.W.3d 837, 839 (Tex.
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App.–Waco 2002, no pet.). Accordingly, we GRANT the District’s motion to dismiss and
DISMISS the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a).
PER CURIAM
Delivered and filed the
3rd day of March, 2011.
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