Lawrence Adams v. the Estate of Ted Whitenight, and Mustang Security and Investigations

Opinion issued February 21, 2019
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00294-CV
———————————
LAWRENCE ADAMS, Appellant
V.
THE ESTATE OF TED WHITENIGHT, DECEASED AND MUSTANG
SECURITY AND INVESTIGATIONS, Appellees
On Appeal from the 164th District Court
Harris County, Texas
Trial Court Case No. 2016-32230
MEMORANDUM OPINION
Appellant, Lawrence Adams, has filed a notice of appeal of the trial court’s
order granting appellees The Estate of Ted Whitenight, Deceased, and Mustang
Security and Investigations’ motion for a no-evidence and traditional summary
judgment, signed on January 26, 2018. We dismiss the appeal for want of
jurisdiction.
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 timely files a motion for new trial, motion to modify
the judgment, motion to reinstate, or, under certain circumstances, a request for
findings of fact and conclusions of law. See TEX. R. APP. P. 26.1(a); TEX. R. CIV. P.
296, 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 TEX. R. APP. P. 26.1, 26.3; Verburgt v. Dorner,
959 S.W.2d 615, 617 (Tex. 1997).
Here, the trial court signed a final order on January 26, 2018. The clerk’s
record filed in this Court does not reflect that appellant filed a post-judgment motion
that would have extended the time to file a notice of appeal to ninety days.
Accordingly, appellant’s notice of appeal was due by February 26, 2018, or by
March 13, 2018, with a fifteen-day extension. See TEX. R. APP. P. 4.1, 26.1(a), 26.3;
2
Verburgt, 959 S.W.2d at 617. Appellant untimely filed his notice of appeal on April
12, 2018. Without a timely filed notice of appeal, this Court lacks jurisdiction over
the appeal. See TEX. R. APP. P. 25.1.
On December 20, 2018, the Clerk of this Court notified appellant that his
appeal was subject to dismissal for want of jurisdiction unless, by January 3, 2019,
he filed a written response showing how this Court has jurisdiction over this appeal.
See TEX. R. APP. P. 42.3(a). Appellant responded stating, in part, that the trial court
signed an order “on summary judgment” on January 26, 2018. The response,
however, does not show that we have jurisdiction over the appeal from the January
26, 2018 summary judgment.
Accordingly, 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 Lloyd, Kelly, and Hightower.
3