John E. Deaton v. Citibank, N.A. ( 2012 )

Opinion issued November 21, 2012
In The
Court of Appeals
For The
First District of Texas
NO. 01-12-00752-CV
JOHN E. DEATON, Appellant
V.
CITIBANK, N.A., Appellee
On Appeal from the County Civil Court at Law No. 3
Harris County, Texas
Trial Court Cause No. 1001320
MEMORANDUM OPINION
Appellant John E. Deaton attempts to appeal from the trial court’s judgment
signed July 11, 2012.
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 90 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. See
TEX. R. APP. P. 26.1(a). To be considered timely, a motion for new trial must be
filed within 30 days after the judgment is signed. TEX. R. CIV. P. 329b(a).
The record reflects that the trial court signed the final judgment on July 11,
2012. A motion for new trial, if any, was due by August 10, 2012. The record
shows that appellant filed a motion for new trial on August 20, 2012—ten days
after the deadline. See id.
Because his motion for new trial was untimely filed, it did not extend the
deadline for filing the notice of appeal. See TEX. R. APP. P. 26.1(a)(1). Appellant’s
notice of appeal remained due by August 10, 2012. Appellant did not file a notice
of appeal until August 20, 2012—ten days after the deadline, but within the 15-day
extension period provided by Rule 26.3. See TEX. R. APP. P. 26.1, 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 15-day
extension period. See TEX. R. APP. P. 26.1, 26.3; Verburgt v. Dorner, 959 S.W.2d
2
615, 617–18 (Tex. 1997). The appellant must, however, offer a reasonable
explanation for failing to file the notice of appeal in a timely manner. See TEX. R.
APP. P. 10.5(b)(1)(C), 26.3; Jones v. City of Houston, 976 S.W.2d 676, 677 (Tex.
1998). Because appellant’s notice of appeal was filed ten days after the deadline
and appellant has offered no explanation for the delay, the notice of appeal was not
timely. Without a timely filed notice of appeal, this Court lacks jurisdiction over
the appeal. See TEX. R. APP. P. 25.1.
Furthermore, appellant has neither established indigence nor paid all the
required fees. See TEX. R. APP. P. 5, 20.1; see also TEX. GOV’T CODE ANN.
§ 51.207 (West Supp. 2012), § 51.941(a) (West 2005), § 101.041 (West Supp.
2012); Order Regarding Fees Charged in Civil Cases in the Supreme Court and the
Courts of Appeals and Before the Judicial Panel on Multidistrict Litigation, Misc.
Docket No. 07-9138 (Tex. Aug. 28, 2007), reprinted in TEX. R. APP. P. app. A
§ B(1).
On September 18, 2012, we notified appellant that this appeal was subject to
dismissal both for want of jurisdiction and for failure to pay the fees or establish
indigence, unless, by September 28, 2012, appellant filed a response providing a
reasonable explanation for the untimely filing of the notice of appeal and paid the
filing fee or established indigence. See TEX. R. APP. P. 5; 25.1; 26.1; 26.3; 42.3(a),
3
(b); Jones, 976 S.W.2d at 677; Verburgt, 959 S.W.2d at 617–18. Appellant did not
file an adequate response.
Accordingly, we dismiss the appeal. See TEX. R. APP. P. 42.3(a), (b); 43.2(f).
We dismiss any pending motions as moot.
PER CURIAM
Panel consists of Justices Keyes, Massengale, and Brown.
4