Christina Akinnusotu v. FC Marketplace, LLC ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-23-00291-CV
___________________________
CHRISTINA AKINNUSOTU, Appellant
V.
FC MARKETPLACE, LLC, Appellee
On Appeal from the 153rd District Court
Tarrant County, Texas
Trial Court No. 153-333281-22
Before Birdwell, Bassel, and Womack, JJ.
Per Curiam Memorandum Opinion
MEMORANDUM OPINION
Appellant Christina Akinnusotu attempts to appeal the trial court’s May 1, 2023
order granting Appellee FC Marketplace, LLC’s motion for traditional summary
judgment on her petition for bill of review. Appellant filed a motion for new trial on
May 17, 2023. She filed her notice of appeal on August 16, 2023.
Generally, a notice of appeal must be filed within thirty days after the date the
judgment is signed, but certain post-judgment motions can extend that deadline to
ninety days. See Tex. R. App. P. 26.1(a) (“[T]he notice of appeal must be filed within
90 days after the judgment is signed if any party files . . . a motion for new trial[ or] a
motion to modify the judgment[.]”). An appellate court may grant an additional
fifteen-day extension of time to file the notice of appeal. See Tex. R. App. P. 26.3;
Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). Thus, in a typical civil case, a
party who wishes to appeal could take up to 105 days from the date the judgment is
signed to file a notice of appeal. See Tex. R. App. P. 26.1(a), 26.3; Poard v. Webb, No.
02-22-00262-CV, 2022 WL 3464863, at *1 (Tex. App.—Fort Worth Aug. 18, 2022, no
pet.) (per curiam) (mem. op.); see also Verburgt, 959 S.W.2d at 617 (citing Rule 26.3 and
holding motion for extension of time is necessarily implied when appellant, acting in
good faith, files a document attempting to perfect appeal beyond time allowed by
appellate rules but within fifteen-day period in which appellant would be entitled to
move to extend filing deadline).
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Because Appellant timely filed a motion for new trial within thirty days of the
judgment’s signing, the notice of appeal was due no later than July 31, 2023.1 See Tex.
R. App. P. 26.1(a). Appellant did not file her notice of appeal within fifteen days or
otherwise move to extend that deadline. See Tex. R. App. P. 26.3; Verburgt, 959 S.W.2d
at 617; Poard, 2022 WL 3464863, at *1. Even if she had, the notice-of-appeal deadline
would not have extended beyond August 15, 2023.2 See Tex. R. App. P. 26.3.
Appellant’s August 16, 2023 notice of appeal was therefore untimely.
Concerned that we did not have jurisdiction over the appeal, we notified
Appellant that unless she filed a response showing grounds for continuing the appeal,
we could dismiss it. See Tex. R. App. P. 42.3(a), 44.3. Appellant filed a response
asserting that “good cause” existed to allow for this court to find that it had
jurisdiction pursuant to Rule 26.1. To show “good cause,” Appellant’s lead appellate
counsel attached his own affidavit to the response, in which he attested that a sudden
death in his family was the cause of the unintentional delay in filing Appellant’s notice
of appeal. Although we sympathize with counsel and his family, we do not have
1
The ninetieth day fell on a weekend, moving Appellant’s notice-of-appeal
deadline to the following Monday. See Tex. R. App. P. 4.1(a).
2
Because the notice-of-appeal deadline had been extended due to a weekend, see
Tex. R. App. P. 4.1(a), the fifteen-day period for filing a motion for an additional
extension began on the extended date of the underlying filing deadline, or July 31,
2023. See Phoenix v. John F. Scott & Co., 676 S.W.2d 441, 442–43 (Tex. App.—Houston
[1st Dist.] 1984, writ ref’d n.r.e.) (order on ancillary motion); Roy W. McDonald &
Elaine A. Grafton Carlson, Texas Civil Appellate Practice § 12:32 (2d ed. 2022); see also
Poard, 2022 WL 3464863, at *1 (citing Rule 4.1(a) and calculating fifteen-day period
from extended date of underlying filing deadline).
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jurisdiction to consider this appeal. See Tex. R. App. P. 2, 25.1(b); Verburgt, 959
S.W.2d at 617 (“[O]nce the period for granting a motion for extension of time . . . has
passed, a party can no longer invoke the appellate court’s jurisdiction.”); Chilkewitz v.
Winter, 25 S.W.3d 382, 382 (Tex. App.—Fort Worth 2000, no pet.) (per curiam) (“The
times for filing a notice of appeal are jurisdictional in this court, and absent a timely
filed notice of appeal, we must dismiss the appeal.”); Galerie Barbizon, Inc. v. Nat’l Asset
Placement Corp., 16 S.W.3d 506, 508 (Tex. App.—Houston [1st Dist.] 2000, no pet.)
(per curiam) (“[W]e have no jurisdiction to grant an extension of time, even if
properly requested, or to consider this appeal.”); see also Jones v. City of Houston, 976
S.W.2d 676, 677 (Tex. 1998).
Accordingly, because Appellant’s August 16, 2023 notice of appeal was
untimely, we must dismiss the appeal for want of jurisdiction. See Tex. R. App. P.
42.3(a), 43.2(f).
Per Curiam
Delivered: September 14, 2023
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