Zimac Care Center Inc., and Virginia Akuchie v. Ngozi Nweze

Opinion issued January 21, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-00716-CV
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ZIMAC CARE CENTER INC. AND VIRGINIA AKUCHIE, Appellants
V.
NGOZI NWEZE, Appellee
On Appeal from the 127th District Court
Harris County, Texas
Trial Court Case No. 2011-52006
MEMORANDUM OPINION
Appellants, Zimac Care Center Inc. and Virginia Akuchie, attempt to appeal
from the trial court’s final judgment signed on May 1, 2015. Appellee, Ngozi
Nweze, has filed a motion to dismiss the appeal for want of jurisdiction. Appellants
have filed a response to the motion and a motion for leave to file their notice of
appeal. We deny appellants’ motion, grant appellee’s motion, and dismiss the
appeal.
Generally, a notice of appeal 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 judgment is signed if, within thirty days after the
judgment is signed, any party files a motion for new trial, motion to modify the
judgment, or motion to reinstate. Id.; see TEX. R. CIV. P. 329b(a), (g). The time to
file a notice of appeal also may be extended if, within fifteen days after the
deadline to file the notice of appeal, a party properly files a motion for extension.
See TEX. R. APP. P. 10.5(b), 26.3. A motion for extension of time is necessarily
implied when an appellant, acting in good faith, files a notice of appeal beyond the
time allowed by rule 26.1, but within the fifteen-day extension period provided by
rule 26.3. See id. 26.1, 26.3; Verburgt v. Dorner, 959 S.W.2d 615, 617–18 (Tex.
1997).
Appellee contends that appellants did not timely file their notice of appeal.
Appellants respond that this case presents a question whether the trial court, when
it denied their motion for new trial on August 7, 2015, had lost its plenary power to
rule on the motion and, if yes, should they “have filed a notice of appeal, and then
request[ed] an abatement for the trial court to make its ruling.” Appellants
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additionally assert that they had until August 20, 2015, to request an extension of
time to file their notice of appeal and filed their notice of appeal before that date.
Appellants, however, did not file their notice of appeal within the fifteen-day
extension period provided by rule 26.3. The trial court signed the final judgment on
May 1, 2015. Because they timely filed a motion for new trial, appellants’ notice of
appeal was due by July 30, 2015, or August 14, 2015, with a fifteen-day extension.
Appellants filed their notice of appeal on August 18, 2015, after the fifteen-day
extension period had ended.
Once the fifteen-day extension period for filing a notice of appeal has passed
without filing a notice of appeal, a party can no longer invoke the appellate court's
jurisdiction. Verburgt, 959 S.W.2d at 617; In re Estate of Padilla, 103 S.W.3d 563,
567 (Tex. App.—San Antonio 2003, no pet.). Without a timely filed notice of
appeal, this Court lacks jurisdiction over the appeal. See TEX. R. APP. P. 25.1. If the
notice is untimely, a court of appeals can take no action other than to dismiss the
proceeding. Cartmill v. Cartmill, No. 14-06-00583-CV, 2006 WL 2164721, at *1
(Tex. App.—Houston [14th Dist.] Aug. 3, 2006, pet. denied) (mem. op.) (citing In
re A.L.B., 56 S.W.3d 651, 652 (Tex. App.—Waco 2003, no pet.)). Because the
notice of appeal in this case was filed beyond the fifteen-day extension period, we
must dismiss the appeal. See Cartmill, 2006 WL 2164721, at *1.
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Accordingly, we deny appellants’ motion for leave to file a notice of appeal,
grant appellee’s motion to dismiss the appeal, and dismiss the appeal for want of
jurisdiction. All other pending motions are dismissed as moot.
PER CURIAM
Panel consists of Justices Higley, Huddle, and Lloyd.
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