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Nick Griego v. Sonya Griego ( 2024 )


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  •                                  Fourth Court of Appeals
    San Antonio, Texas
    MEMORANDUM OPINION
    No. 04-24-00173-CV
    Nick GRIEGO,
    Appellant
    v.
    Sonya GRIEGO,
    Appellee
    From the 37th Judicial District Court, Bexar County, Texas
    Trial Court No. 2021CI10614
    Honorable Norma Gonzales, Judge Presiding
    PER CURIAM
    Sitting:          Irene Rios, Justice
    Beth Watkins, Justice
    Liza A. Rodriguez, Justice
    Delivered and Filed: April 17, 2024
    DISMISSED FOR LACK OF JURISDICTION
    The trial court signed a final, appealable judgment on March 22, 2022. Because appellant
    did not timely file a motion for new trial, his notice of appeal was due 30 days later, on April 21,
    2022. 1 See TEX. R. APP. P. 26.1. A motion for extension of time to file the notice of appeal was
    due by May 6, 2022. See TEX. R. APP. P. 26.3.
    1
    Appellant contends that he timely filed a motion to set aside the final judgment. For the reasons explained below,
    we lack jurisdiction over this appeal even if we assume appellant timely filed the motion to set aside the judgment.
    04-24-00173-CV
    Appellant filed his notice of appeal on March 8, 2024. “[O]nce the period for granting a
    motion for extension of time under Rule [26.3] has passed, a party can no longer invoke the
    appellate court’s jurisdiction.” See Verburgt v. Dorner, 
    959 S.W.2d 615
    , 617 (Tex. 1997)
    (construing the predecessor to Rule 26). Because the notice of appeal was untimely filed, on March
    25, 2024, we ordered appellant to show cause why this appeal should not be dismissed for lack of
    jurisdiction. See 
    id.
     In our order, we noted that if appellant failed to adequately respond to this
    order by the date ordered, this appeal would be dismissed for lack of jurisdiction. See TEX. R. APP.
    P. 42.3.
    On April 4, 2024, appellant filed a response to our order. In his response, he contends that
    he timely filed a motion to set aside the judgment, and he explains that during the time between
    the final judgment and his notice of appeal, he was attempting to set a hearing on that motion. He
    also contends that the deadline for his notice of appeal did not begin to run until after a February
    13, 2024 hearing in the trial court. 2
    The deadline to file a notice of appeal begins to run on the day the trial court signs a final
    judgment. TEX. R. APP. P. 26.1; Morris v. Wells Fargo Bank, N.A., No. 01-19-00610-CV, 
    2019 WL 4677365
    , at *2 (Tex. App.—Houston [1st Dist.] Sept. 26, 2019, no pet.) (mem. op.). Here, the
    language of the trial court’s March 22, 2022 judgment shows the judgment was final and
    appealable as of that date:
    IT IS ORDERED AND DECREED that all relief requested in this case and not
    expressly granted is denied. This is a final judgment, for which let execution and
    all writs and processes necessary to enforce this judgment issue. This judgment
    finally disposes of all claims and all parties and is appealable.
    2
    During the February 13, 2024 hearing, the trial court informed appellant that its plenary power over this case had
    expired and it lacked authority to grant the relief he sought. See TEX. R. CIV. P. 329b(f).
    -2-
    04-24-00173-CV
    See, e.g., Lehmann v. Har-Con Corp., 
    39 S.W.3d 191
    , 200 (Tex. 2001). Even if we assume
    appellant timely filed his motion to set aside the judgment, his notice of appeal would have been
    due no later than June 20, 2022, and a motion for extension of time to file the notice of appeal
    would have been due by July 5, 2022. TEX. R. APP. P. 26.1, 26.3. The trial court’s failure to hold
    a hearing or issue a written ruling on appellant’s motion to set aside the judgment did not extend
    these deadlines. See, e.g., N. Cent. Baptist Hosp. v. Chavez, No. 04-02-00590-CV, 
    2021 WL 983351
    , at *1 (Tex. App.—San Antonio Mar. 17, 2021, no pet.) (mem. op.) (noting the deadline
    to file a notice of appeal “is not altered by a trial court’s ruling on a motion for new trial”). Because
    appellant did not file his notice of appeal until March 8, 2024, we have no choice but to dismiss
    this appeal for lack of jurisdiction. See id.; see also Verburgt, 959 S.W.2d at 617.
    PER CURIAM
    -3-
    

Document Info

Docket Number: 04-24-00173-CV

Filed Date: 4/17/2024

Precedential Status: Precedential

Modified Date: 4/23/2024