Vozarron, Inc. v. Harris County Appraisal District ( 2016 )

Opinion issued September 29, 2016
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-16-00224-CV
———————————
VOZARRON, INC., Appellant
V.
HARRIS COUNTY APPRAISAL DISTRICT, Appellee
On Appeal from the 164th District Court
Harris County, Texas
Trial Court Case No. 2009-57592
MEMORANDUM OPINION
Appellant, Vozarron, Inc., attempts to appeal from the final judgment of the
trial court, signed on January 5, 2016. In response to the Court’s orders notifying
appellant that this appeal was subject to dismissal for want of jurisdiction, because
the March 4, 2016 notice of appeal appeared untimely, or for want of prosecution
for failure to pay all required fees, appellant filed a motion to retain this case in this
Court. We dismiss the appeal for want of jurisdiction and dismiss this motion as
moot.
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 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. 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).
Here, the trial court signed the final judgment on January 5, 2016, ordering
appellant to pay a certain amount of property tax. Appellant did not file any post-
judgment motions, which made February 4, 2016, its deadline for filing a notice of
appeal. See TEX. R. APP. P. 26.1(a)(1).
2
Appellant’s notice of appeal was not filed in the trial court until March 14,
2016, which was thirty-nine days past the February 4, 2016 deadline for filing the
notice of appeal, and twenty-four days past the fifteen-day extension period ending
on February 19, 2016. See TEX. R. APP. P. 26.1(a)(1), 26.3(a). Appellant did not
file 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 id. 26.3(b); Verburgt, 959
S.W.2d at 617–18. Without a timely filed notice of appeal, this Court lacks
jurisdiction over the appeal. See TEX. R. APP. P. 25.1.
On April 28, 2016, the Clerk of this Court notified appellant’s counsel that
this appeal was subject to dismissal for want of jurisdiction unless he timely
responded and showed how this Court had jurisdiction over this appeal. See TEX. R.
APP. P. 42.3(a), (c). In response, appellant’s counsel filed an affidavit of indigence
in this Court on May 23, 2016, which was forwarded to the trial court, and the trial
court sustained a contest to the affidavit of indigence. On July 14, 2016, after
appellant failed to timely file a motion to review the trial court’s order sustaining a
contest to its affidavit of indigence, this Court ordered appellant to pay the filing and
clerk’s record fees within thirty days or else this appeal would be subject to dismissal
for want of prosecution. See TEX. R. APP. P. 42.3(b).
Because appellant’s counsel claimed that he needed time to contact the district
clerk to obtain hard copy records of his motion for new trial, this Court granted two
3
extensions. Then appellant filed this “Motion to Retain Case on Appeal and
Response to ‘Orders on Motions’ Dated August 18, 2016, Including Request for
Court Order to District Clerk” in this Court. Although appellant’s counsel timely
filed a response, he failed to show grounds for this Court’s jurisdiction over this
appeal. Instead, appellant’s counsel claimed, among other things, that when he
recently visited the district clerk’s office, he was told that they did not know what
had happened to the hard copy of his motion for new trial because there was no
electronic filing of it and that he could not see his motion for new trial in the district
clerk’s computer. However, appellant’s response does not show how this Court has
jurisdiction over this untimely appeal.
Conclusion
Accordingly, we dismiss the appeal for want of jurisdiction. See TEX. R. APP.
P. 42.3(a); 43.2(f). We dismiss all pending motions as moot.
PER CURIAM
Panel consists of Chief Justice Radack and Justices Higley and Huddle.
4