Appeal from the 434th District Court Fort Bend County, Texas
Trial Court Case No. 15-DCV-221475.
consists of Lloyd, Goodman, and Landau Justices.
Albert Morris, attempts to appeal the trial court's April
22, 2019 final summary judgment dismissing his claims.
Appellees have filed a motion to dismiss this appeal for lack
of jurisdiction because appellant's August 14, 2019
notice of appeal was untimely. We grant appellees' motion
and dismiss the appeal.
a notice of appeal generally must be filed within 30 days
after the judgment is signed, the time to file a notice of
appeal is extended to 90 days after the signing if a party
files a timely motion for new trial, motion to modify the
judgment, motion to reinstate, or a request for findings of
fact and conclusions of law that is either required by the
Rules of Civil Procedure or properly considerable by the
appellate court. Tex.R.App.P. 26.1(a). The time to file
a notice of appeal may also 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, 617–18
the trial court signed its final summary judgment dismissing
appellant's claims on April 22, 2019. Appellant filed a
timely motion for new trial on May 21, 2019. The trial court
subsequently denied the motion for new trial on July 15,
2019. On August 14, 2019, appellant filed his notice of
appeal purporting to appeal both the final summary judgment
and the order denying his motion for new trial. Appellees
subsequently filed their motion to dismiss this appeal for
want of jurisdiction, asserting that (1) the order denying
appellant's motion for new trial is not appealable and
(2) appellant's notice of appeal from the final summary
judgment was untimely.
response to appellees' motion to dismiss the appeal,
appellant asserts that (1) the July 15, 2019 order denying
appellant's motion for new trial is the final judgment in
the case and (2) the period for calculating the deadline for
filing his notice of appeal ran from the July 15, 2019 denial
of his motion for new trial. As discussed below,
appellant's arguments are directly contradicted by both
the Rules of Appellate Procedure and case law.
an order denying a motion for reconsideration or motion for
new trial is not independently appealable. See Digges v.
Knowledge Alliance, Inc., 176 S.W.3d 463, 464
(Tex.App.-Houston [1st Dist.] 2004, no pet.) (holding that
interlocutory order denying motion to reconsider is not
independently appealable); State Office of Risk
Mgmt. v. Berdan, 335 S.W.3d 421, 428 (Tex.App.-Corpus
Christi 2011, pet. denied) ("The order denying
[appellant's] motion to reconsider and motion for new
trial was not independently appealable so as to start a new
timetable for perfecting the appeal."). An appeal must
be taken from the final judgment, not the refusal to
reconsider that judgment. See Macklin v. Saia Motor
Freight Lines, Inc., 06-12-00038-CV, 2012 WL 1155141, at
*1 (Tex.App.-Texarkana Apr. 6, 2012, no pet.). It is well
established that "[n]o appeal from an order denying a
motion for new trial exists separately from an appeal of the
underlying judgment. See Cornwell v. Cornwell, No.
02-17-00105-CV, 2017 WL 6759031, at *1 (Tex.App.-Fort Worth
Dec. 28, 2017, no pet.). Accordingly, the final appealable
judgment in this case is the trial court's April 22, 2019
summary judgment dismissing appellant's claims.
the time for filing a notice of appeal runs from the signing
of the final judgment, not the subsequent denial of a motion
for new trial. See Tex. R. App. P. 26. Rule
26.1(a)(1) provides that, if a motion for new trial is timely
filed, "the notice of appeal must be filed within 90
days after the judgment is signed." Tex.R.App.P.
26.1(a). Here, appellant's motion for new trial extended
the deadline for filing his notice of appeal to 90 days
following the trial court's signing the final judgment on
April 22, 2019. See Tex. R. App. P. 26.1(a). Because
the 90th day after April 22, 2019 fell on a Sunday, the
deadline was further extended to the next day, July 22, 2019.
See Tex. R. App. P. 4.1(a). Appellant's August
14, 2019 notice of appeal was untimely filed 23 days after
the July 22, 2019 deadline. Contrary to appellant's
assertions, the denial of a motion for new trial does not
extend the time for filing a notice of appeal beyond the
90-day deadline set forth in Rule 26.1. See Garza v.
Hibernia Nat'l Bank, 227 S.W.3d 233, 233 n. 1
(Tex.App.-Houston [1st Dist.] 2007, no pet.).
notice of appeal was untimely filed 23 days after the final
appealable judgment. Absent a timely notice of appeal, this
court is without jurisdiction to consider this appeal.
See Wilkins v. Methodist Health Care Sys., 160
S.W.3d 559, 564 (Tex. 2005); Garza, 227 S.W.3d at
233. Accordingly, we grant appellees' motion to dismiss
and dismiss this appeal ...