Myrmac Corporation A/K/A McDonald's Corp. v. Michelle VanBrocklin ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-23-00409-CV
___________________________
MYRMAC CORPORATION A/K/A MCDONALD’S CORP., Appellant
V.
MICHELLE VANBROCKLIN, Appellee
On Appeal from the 43rd District Court
Parker County, Texas
Trial Court No. CV21-0299
Before Birdwell, Bassel, and Womack, JJ.
Per Curiam Memorandum Opinion
MEMORANDUM OPINION
Appellant Myrmac Corporation a/k/a McDonald’s Corp. attempts to appeal
from a final judgment entered against it following a jury trial. The trial court entered
its judgment on the jury’s verdict on June 30, 2023. Appellant filed a timely motion
for new trial, then it filed its notice of appeal on October 30, 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[.]”); see also Tex. R. Civ. P. 329b (stating that filing a
motion for new trial or motion to modify extends the trial court’s plenary power). 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 as long as
105 days from the date the judgment is signed to file a notice of appeal. See Tex. R.
App. P. 26.1, 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, the notice of appeal was
due no later than September 28, 2023. See Tex. R. App. P. 26.1(a); see also Tex. R. Civ.
P. 329b(a) (“A motion for new trial . . . shall be filed prior to or within thirty days
after the judgment or other order complained of is signed.”). Appellant did not move
to extend that deadline. See Tex. R. App. P. 10.5(b)(1)(C), 26.3; Verburgt, 959 S.W.2d at
617; Poard, 2022 WL 3464863, at *1. Even if it had, however, Appellant could not
have extended the notice-of-appeal deadline beyond October 13, 2023. See Tex. R.
App. P. 26.3. Appellant’s October 30, 2023 notice of appeal was therefore untimely.
On October 31, 2023, we notified Appellant that this court was concerned that
we did not have jurisdiction over the appeal because the notice of appeal was not
timely filed. We warned Appellant that unless it filed a response by November 10,
2023, showing grounds for continuing the appeal, we could dismiss it. See Tex. R.
App. P. 42.3(a), 44.3. We have received no response.
Because Appellant’s October 30, 2023 notice of appeal was untimely, we
dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a), 43.2(f).
Per Curiam
Delivered: December 7, 2023
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