Uni-Tec Trade, Inc. v. Schneider Electric Services and ECP Electrical Supply, Inc. ( 2020 )

Opinion issued January 30, 2020
In The
Court of Appeals
For The
First District of Texas
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NO. 01-19-00745-CV
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UNI-TEC TRADE, INC., Appellant
V.
SCHNEIDER ELECTRIC SERVICES AND ECP ELECTRICAL SUPPLY,
INC., Appellees
On Appeal from the 234th District Court
Harris County, Texas
Trial Court Case No. 2016-80650
MEMORANDUM OPINION
Appellant, Uni-Tec Trade, Inc., is attempting to appeal from orders signed on
June 3, 2019 and September 16, 2019. Appellees filed a motion to dismiss the appeal
as untimely. We grant the motion and dismiss the appeal.
In its original petition, Uni-Tec sued Schneider Electric Services and ECP
Electrical Supply, Inc. for damages for negligent misrepresentation, intentional
misrepresentation, DTPA violations, breach of contract, fraud, and fraudulent
inducement. The trial court signed an interlocutory order on March 29, 2018 granting
summary judgment in favor of Schneider on all claims by Unit-Tec against
Schneider. A jury trial was held on Uni-Tec’s claims against ECP. On June 3, 2019,
the trial court signed a judgment based on the jury verdict ordering that Uni-Tec take
nothing on its claims against ECP.
Although it had filed a motion for new trial challenging the interlocutory
summary judgment in favor of Schneider on April 29, 2018, Uni-Tec filed another
motion for new trial and a motion for reconsideration of the summary judgment order
in favor of Schneider on July 2, 2019. Also on July 2, 2019, Uni-Tec filed a second
amended motion for new trial and motion for reconsideration of the interlocutory
summary judgment granted to Schneider. By order signed September 16, 2019, the
trial court denied Uni-Tec’s second amended motion for new trial and for
reconsideration of the judgment granted to Schneider. Uni-Tec filed a notice of
appeal on September 24, 2019.
Appellees, Schneider and ECP, filed a motion to dismiss the appeal, claiming
that Uni-Tec’s notice of appeal was untimely filed.
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Unless a motion for new trial is timely filed, the notice of appeal is due within
thirty days after the judgment is signed. See TEX. R. APP. P. 26.1. The motion for
new trial is timely filed if filed within thirty days after the judgment is signed. See
TEX. R. CIV. P. 329b(a). If a motion for new trial is timely filed within thirty days
after the signing of the final judgment, the deadline for filing the notice of appeal is
extended until ninety days after the judgment is signed. See TEX. R. APP. P.
26.1(a)(1). If the notice of appeal is filed within the fifteen-day period after it is due,
the appellate court may grant an extension of time to file the notice of appeal. See
TEX. R. APP. P. 26.3; see also Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997)
(extension of time implied if notice of appeal filed within fifteen-day period after
notice of appeal is due).
The final judgment was signed on June 3, 2019, when the trial court signed a
judgment on the jury verdict in favor of ECP. Because Uni-Tec filed a timely motion
for new trial within thirty days after the final judgment was signed, its notice of
appeal was due ninety days after the June 3rd judgment was signed. The ninetieth
(90th) day was Sunday, September 1, 2019. Because the deadline was a Sunday, and
the following Monday was a holiday—Labor Day—Uni-Tec’s notice of appeal was
due to be filed on Tuesday, September 3, 2019. Uni-Tec did not file its notice of
appeal until September 24, 2019, twenty-one days after it was due. Because the
notice of appeal was filed more than fifteen days after the deadline, no extension of
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time was implied and the Court lacks jurisdiction over this appeal. See Galerie
Barbizon, Inc. v. Nat’l Asset Placement Corp., 16 S.W.3d 506, 508 (Tex. App.—
Houston [1st Dist.] 2000, no pet.).
Appellees’ motion to dismiss is granted. We dismiss the appeal for lack of
jurisdiction. Any other pending motions are dismissed as moot.
PER CURIAM
Panel consists of Chief Justice Radack and Justices Landau and Hightower.
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