Robert W. Howard, Ph.D. v. Walter Goff ( 2024 )

Opinion issued May 16, 2024
In The
Court of Appeals
For The
First District of Texas
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NO. 01-23-00775-CV
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ROBERT W. HOWARD, Appellant
V.
WALTER GOFF, Appellee
On Appeal from the 113th District Court
Harris County, Texas
Trial Court Case No. 2020-34066
MEMORANDUM OPINION
Appellant Robert W. Howard, proceeding pro se, filed a notice of appeal on
October 18, 2023, seeking to challenge the trial court’s order signed on August 31,
2023. We dismiss the appeal for lack of jurisdiction.
The trial court signed its final judgment on June 21, 2023. On August 31,
2023, the trial court signed an order granting in part Appellee Walter Goff’s Motion
to Modify Judgment and modifying the post-judgment interest rate from six to
eighteen percent. It is undisputed that Appellee’s Motion to Modify Judgment
extended the appellate timetable for filing a notice of appeal because the motion
sought substantive changes in the final judgment. See TEX. R. CIV. P. 329b(h).
Appellant filed his notice of appeal on October 18, 2023. A notice of appeal
generally 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 challenged judgment is signed if, within thirty days after the judgment is signed,
any party files a motion for new trial, a motion to modify the judgment, a motion to
reinstate or, under certain circumstances, a request for findings of fact and
conclusions of law. Id.; TEX. R. CIV. P. 329b(a), (g). “If a judgment is modified,
corrected or reformed in any respect, the time for appeal shall run from the time the
modified, corrected, or reformed judgment is signed . . . .” TEX. R. CIV. P. 329b(h).
The time to file a notice of appeal may be extended if, within fifteen days after
the deadline to file the notice of appeal, a party properly files a motion for extension
of time to file the notice of appeal. See TEX. R. APP. P. 10.5(b), 26.3. A motion for
extension of time is implied when an appellant, acting in good faith, files a notice of
appeal beyond the time allowed under Rule 26.1, but within the fifteen-day extension
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period provided under Rule 26.3. See TEX. R. APP. P. 26.1, 26.3; Verburgt v. Dorner,
959 S.W.2d 615, 617 (Tex. 1997).
On March 15, 2024, Appellant filed a Motion for Extension of Time to file
his appellate brief. Appellee filed a Response in Opposition to Appellant’s motion,
asserting that Appellant’s motion should be denied as moot because he “failed to
timely perfect his appeal.” Appellee noted that Appellant’s deadline to file his notice
of appeal was either “September 19, 2023 ([ninety] days after the [j]udgment was
signed on June 21, 2023)” or “October 2, 2023” (“[thirty] days from the date of the
modified judgment, . . . August 31, 2023”), and that by filing his notice of appeal on
October 18, 2023, “[Appellant] failed to timely notice the appeal under any
purported deadline.”
Appellant replied, arguing that he “timely perfect his appeal” because his
“notice of appeal was due within [ninety] days after the modified judgment was
signed [on August 31, 2023] . . . .” Contrary to Appellant’s contention, his notice of
appeal was due thirty days, not ninety days, from the date the modified judgment
was signed. TEX. R. CIV. P. 329b(h). And because Appellant did not file his notice
of appeal until October 18, 2023, sixteen days after the October 2, 2023 deadline,
Appellant’s notice of appeal is one day past the discretionary fifteen-day extension
period to file a notice of appeal. See TEX. R. APP. P. 26.3; Verburgt v. Dorner, 959
S.W.2d at 617. Without a timely notice of appeal, this Court lacks jurisdiction over
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the appeal. See TEX. R. APP. P. 26.1; Lab. Corp. of Am. v. Mid-Town Surgical Ctr.,
Inc., 16 S.W.3d 527, 529 (Tex. App.—Dallas 2000, no pet.) (“A timely notice of
appeal is a requirement for this Court’s jurisdiction.”).
We dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a),
43.2(f). We dismiss any pending motions as moot.
PER CURIAM
Panel consists of Justices Kelly, Countiss, and Rivas-Molloy.
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