Donald Spencer v. Joe Pagliarulo and CC Media Holdings Inc. , 2014 Tex. App. LEXIS 10863 ( 2014 )

Opinion issued September 30, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00376-CV
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DONALD E. SPENCER, Appellant
V.
JOE PAGLIARULO AND CC MEDIA HOLDINGS, INC., Appellees
On Appeal from the 55th District Court
Harris County, Texas
Trial Court Case No. 2013-67694
OPINION
Appellant, Donald E. Spencer, attempts to appeal from the trial court’s order
granting the motion to dismiss filed by appellees, Joe Pagliarulo and CC Media
Holdings, Inc., pursuant to section 27.003 of the Texas Civil Practice and
Remedies Code. We dismiss the appeal.
An appeal from an “order on a motion to dismiss a legal action under
Section 27.003” of the Texas Civil Practice and Remedies Code is an accelerated
appeal. TEX. CIV. PRAC. & REM. CODE ANN. § 27.008(b) (West Supp. 2014)
(requiring appellate court to expedite appeal from order on motion filed pursuant to
section 27.003); TEX. R. APP. P. 28.1(a) (defining accelerated appeal to include
appeals required by statute to be expedited). In an accelerated appeal, absent a
motion to extend time under Texas Rule of Appellate Procedure 26.3, “the
deadline for filing a notice of appeal is strictly set at twenty days after the
judgment is signed, with no exceptions . . . .” In re K.A.F., 160 S.W.3d 923, 927
(Tex. 2005); see TEX. R. APP. P. 26.1(b). If a motion for extension of time to file
the notice of appeal is timely filed, the deadline for filing a notice of appeal is
extended by fifteen days, to thirty-five days after the judgment is signed. See TEX.
R. APP. P. 26.3; Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). Filing a
motion for new trial does not extend the appellate deadlines in an accelerated
appeal. See TEX. R. APP. P. 28.1(b); K.A.F., 160 S.W.3d at 927, 928; In re R.B.M.,
338 S.W.3d 755, 756 (Tex. App.—Houston [14th Dist.] 2011, no pet.).
Because the trial court granted the appellees’ section 27.003 motion to
dismiss on March 3, 2014 and issued its final judgment on March 25, 2014,
Spencer’s notice of appeal was due by April 14, 2014. Spencer, proceeding pro se,
filed his notice of appeal on May 2, 2014, which was thirty-eight days after the
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final judgment was rendered. Hence, Spencer’s notice of appeal was untimely.
See TEX. R. APP. P. 26.1(b), 26.3; K.A.F., 160 S.W.3d at 927.
On September 2, 2014, we notified Spencer that his appeal was subject to
dismissal for want of jurisdiction unless he filed a written response showing how
this Court has jurisdiction over this appeal. See TEX. R. APP. P. 42.3(a) (allowing
involuntary dismissal of case after notice). Although Spencer did not respond to
our September 2, 2014 notice, he had previously filed a response to a notice issued
by the Clerk on August 20, 2014, in which he contended that he had sixty days to
appeal the trial court’s ruling under Texas Civil Practice and Remedies Code
section 27.008. This argument appears to rely on former section 27.008(c), which
was repealed effective June 14, 2013 and is therefore inapplicable to this case. See
Act of May 21, 2011, 82d Leg., R.S., ch. 341, § 2, sec. 27.008(c), 2011 Tex. Gen.
Laws 961, 963, repealed by Act of May 24, 2013, 83d Leg., R.S., ch. 1042, § 5,
2013 Tex. Sess. Law Serv. 2501, 2502 (West).
Because Spencer’s notice of appeal was not filed within twenty days of the
trial court’s final judgment or within the fifteen-day extension period, Spencer’s
response fails to demonstrate either that his notice of appeal was timely or that we
have jurisdiction over this appeal. See TEX. R. APP. P. 2 (prohibiting appellate
court from construing Rule 2 to “alter the time for perfecting an appeal in a civil
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case”), 26.3 (authorizing extension of time if motion for extension is filed within
fifteen days of deadline); K.A.F., 160 S.W.3d at 927.
Accordingly, we dismiss the appeal for want of jurisdiction. See TEX. R.
APP. P. 42.3(a), 43.2(f); see K.A.F., 160 S.W.3d at 927 (holding that untimely
notice of appeal failed to invoke jurisdiction of appellate court); R.B.M., 338
S.W.3d at 756, 758 (dismissing appeal for want of jurisdiction when notice of
appeal was untimely).
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Jennings and Keyes.
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