Barnard Ed Anderson v. Beall Village

Appeal Dismissed and Memorandum Opinion filed October 18, 2018.
In The
Fourteenth Court of Appeals
NO. 14-18-00824-CV
BARNARD ED ANDERSON, Appellant
V.
BEALL VILLAGE, Appellee
On Appeal from County Civil Court at Law No. 3
Harris County, Texas
Trial Court Cause No. 1095925
MEMORANDUM OPINION
This is an attempted appeal from a judgment signed February 21, 2018. A
notice of appeal must be filed within 30 days after the judgment is signed when no
timely post-judgment motion is filed. See Tex. R. App. P. 26.1. The deadline is
extended to 90 days after the judgment is signed if an appropriate post-judgment
motion is timely filed. See Tex. R. App. P. 26.1(a). The deadline to file such a post-
judgment motion is 30 days after the judgment is signed. Tex. R. Civ. P. 329b(a). In
this case, the deadline to file a post-judgment motion was March 23, 2018.
The clerk’s record contains a document entitled, “Plaintiff’s Plead to Clerk’s
(Notice of Order for Defendant).” Though the document is difficult to understand, it
appears to challenge the February 21, 2018, judgment. Any post-judgment motion,
which, if granted, would result in a substantive change in the judgment as entered,
extends the time for perfecting the appeal. Gomez v. Tex. Dep’t of Crim. Justice, 896
S.W.2d 176, 177 (Tex. 1995). We therefore liberally construe that document as a
post-judgment motion that, if it was timely filed, extended the time for appellant to
file a notice of appeal.
The document bears a file-stamp date of March 28, 2018, which is more than
30 days after the judgment was signed. However, the clerk’s record suggests the
document was properly addressed and mailed to the trial court by first-class U.S.
mail on March 21, 2018, a date within the 30-day deadline under Texas Rule of Civil
Procedure 329b(a). Because the document was mailed within the 30-day period and
the clerk received it within 10 days of mailing, the document is deemed timely filed
under the “mailbox rule.” See Tex. R. Civ. P. 5.
Due to his timely filing of a post-judgment motion, appellant’s deadline to file
a notice of appeal was May 22, 2018, which was 90 days after the judgment was
signed. No notice of appeal was filed on or before May 22, 2018. The clerk’s record
contains a letter from appellant that the clerk appears to have treated as a notice of
appeal. The record does not reflect when the letter was mailed, but the letter bears a
file-stamp date of September 4, 2018. The letter suggests appellant mailed
documents directly to the First Court of Appeals on July 24, 2018, in an attempt to
appeal. Even if we construe the alleged mailing to our sister court as a bona fide
attempt by appellant to perfect an appeal, that attempt was made more than two
months past the 90-day deadline of May 22, 2018.
A motion for extension of time is necessarily implied when an appellant,
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acting in good faith, files a notice of appeal beyond the time allowed by rule 26.1,
but within the 15-day grace period provided by Texas Rule of Appellate Procedure
26.3 for filing a motion for extension of time. See Verburgt v. Dorner, 959 S.W.2d
615, 617–18 (1997) (construing the predecessor to rule 26). Appellant’s notice of
appeal was not filed within the 15-day period provided by rule 26.3.
A court of appeals lacks jurisdiction to hear an appeal that was not timely
perfected. When the court lacks jurisdiction, it must dismiss the appeal. See Baker
v. Baker, 469 S.W.3d 269, 272 (Tex. App.—Houston [14th Dist.] 2015, no pet.).
On September 21, 2018, we notified the parties of our intent to dismiss the
appeal for lack of jurisdiction. See Tex. R. App. P. 42.3(a). Appellant filed no
response.
The appeal is dismissed for lack of jurisdiction.
PER CURIAM
Panel consists of Justices Donovan, Wise, and Jewell.
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