DANIEL J. SHEA, Appellant
GERALD DUANE ROLLINS JUNIOR, Appellee and GERALD DUANE ROLLINS JUNIOR, Appellant
SECOND BAPTIST CHURCH OF HOUSTON, Appellee
Appeal from the 127th District Court Harris County, Texas
Trial Court Case No. 2017-69277B
consists of Justices Lloyd, Goodman, and Landau.
appeal involves two separate notices of appeal from the final
judgment in the underlying case: (1) an April 30, 2019 notice
of appeal filed by Daniel Shea as an intervenor listing Shea
as appellant and Gerald Duane Rollins Jr. as appellee and (2)
a subsequent notice of appeal filed by Rollins on July 3,
2019 listing Rollins as appellant and Second Baptist Church
Baptist Church has filed a motion to dismiss this appeal for
lack of jurisdiction because Rollins's notice of appeal
was untimely. We grant the motion in part and dismiss the
appeal by Rollins as untimely. See Tex. R. App. P.
42.3(a), (b). The motion to dismiss is denied with respect to
the appeal by Shea. On this Court's own initiative after
providing notice to the parties, we dismiss the appeals by
both Rollins and Shea for want of prosecution. See
Tex. R. App. P. 42.3(b)
October 15, 2018, the trial court granted Second
Baptist's motion for summary judgment. Because the order
did not dispose of all parties and claims, Second Baptist
moved to sever Rollins's claims against it. On January
30, 2019, the trial court granted Second Baptist's motion
for severance and created Cause No. 2017-69277-B, Gareld
Duane Rollins, Jr. v. Second Baptist Church. The
severance order provides that it "shall constitute a
final judgment in the severed cause, because it disposes of
all parties and claims in the severed cause." Rollins
timely filed a motion for new trial on March 1, 2019.
See Tex. R. Civ. P. 329b(a). Because the trial court
did not rule on the motion for new trial, it was overruled by
operation of law 75 days after the severance order was
signed. See Tex. R. Civ. P. 329b(c).
April 30, 2019, Rollins's former counsel, Daniel Shea,
filed a notice of appeal on his own behalf as an intervener
asserting claims against Rollins in the underlying case.
Rollins subsequently filed his notice of appeal on July 3,
to Perfect 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 Verburgt v. Dorner, 959 S.W.2d 615,
617-18 (Tex. 1997).
the order granting summary judgment in favor of Second
Baptist became a final judgment when the trial court signed
the severance order on January 30, 2019. See Avni v.
Dosohs I, Ltd., No. 01-15-00459-CV, 2016 WL 2745421, at
*1 (Tex. App.-Houston [1st Dist.] May 10, 2016, no pet.)
(mem. op.) ("A court may make an otherwise interlocutory
order that disposes of all claims against a party final for
purposes of appeal by severing the cause and parties disposed
of by the order into a different cause."). Rollins's
motion for new trial extended the deadline for filing a
notice of appeal to 90 days from the signing of the January
30, 2019 order. See Tex. R. App. P. 26.1(a)(1).
Accordingly, the notice of appeal was due on April 30, 2019.
of Rollins's Untimely Appeal
Baptist has filed a motion to dismiss the appeal for want of
jurisdiction because Rollins's July 3, 2019 notice of
appeal was untimely filed 64 days after the April 30, 2019
deadline. See Tex. R. App. P. 26.1(a)(1). In
response, Rollins asserts that Shea's notice of appeal
sufficiently invokes our appellate jurisdiction to consider
Rollins's appeal despite his untimely notice of appeal.
relies upon Rule 25.1(b) of the Texas Rules of Appellate
Procedure, which provides that "The filing of a notice
of appeal by any party invokes the appellate court's
jurisdiction over all parties to the trial court's
judgment or order appealed from." Tex. R. App. p.
25.1(b). But Rollins's assertion that the filing of a
notice of appeal by any party excuses other parties from
timely filing a notice of appeal conflicts with the specific
text of Rule 26.1(d), which provides that "if any party
timely files a notice of appeal, another party may file a
notice of appeal within ...