Amier Gantt v. Harris County Central Technology Services, Harris County, & Terry Ortiz

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Amier Gantt v. Harris County Central Technology Services,
Harris County, & Terry Ortiz
Appellate case number: 01-19-00263-CV
Trial court case number: 2017-54479
Trial court: 281st District Court of Harris County
This is an appeal from the dismissal of an employment discrimination claim filed
by Amier Gantt, who died during the pendency of the underlying litigation. The appeal was
abated for the resolution of a question whether Gantt’s widow was the correct party to
represent the estate under Texas Rule of Civil Procedure 151. See TEX. R. CIV. P. 151 (“If
the plaintiff dies, the heirs, or the administrator or executor of such decedent may appear
and upon suggestion of death being entered of record in open court, may be made plaintiff,
and the suit shall proceed in his or their name.”). The trial court has conducted a hearing to
resolve this question. Accordingly, we reinstate the appeal.
However, a question remains as to the timeliness of the notice of appeal.
Specifically, the Court’s records indicate that the notice of appeal, filed on April 4, 2019,
may not have been timely filed to appeal the trial court judgment signed thirty-one days
earlier, on March 4, 2019. See TEX. R. APP. P. 26.1 (requiring notice of appeal to be filed
within thirty days after judgment is signed or within ninety days if timely motion for new
trial is filed or within six months after judgment is signed for restricted appeal). The clerk’s
record filed in this appeal does not reflect that any post-judgment motion was filed. See
TEX. R. APP. P. 329b(a) (requiring motion for new trial to be filed within thirty days after
judgment or other order complained of signed); see also TEX. R. CIV. P. 329b(g). No
motion to extend the time for filing a notice of appeal has been filed in this Court. See TEX.
R. APP. P. 26.3 (appellate court may extend the time to file notice of appeal if, within 15
days after deadline for filing notice of appeal, party (a) files in trial court the notice of
appeal and (2) files in the appellate court a motion complying with TEX. R. APP. P. 10.5(b));
but see Hone v. Hanafin, 959 S.W.2d 884, 886–87 (Tex. 2003) (instructing that appellate
court may consider notice of appeal filed within 15-day period stated in TEX. R. APP. P.
26.3 as implied motion for extension of time if appellant reasonably explains failure to
timely file notice of appeal). Without a timely filed notice of appeal, this Court lacks
jurisdiction over an appeal. See TEX. R. APP. P. 25.1.
On the same day this Court abated the appeal, the Court notified appellant of the
untimeliness of the notice of appeal and requested a response demonstrating the Court’s
jurisdiction to decide the appeal. No response was received from appellant. Now the case
has been reinstated, the Court again notifies appellant that it may dismiss this appeal unless
appellant files a written response that demonstrates, with citation to the record, statutes,
rules, and/or case law, that this Court has jurisdiction over the appeal. Any response must
be filed within 14 days of the date of this notice. Appellant must respond in writing
even if appellant has previously claimed the notice of appeal was timely filed.
If a meritorious response is not received by the deadline, the Court may dismiss
the appeal for want of jurisdiction without further notice. See TEX. R. APP. P. 42.3(a).
Judge’s signature: /s Amparo Guerra
Date: April 12, 2022