Joel Mallory Junior v. West Bellfort Property Owners Association

Opinion issued July 9, 2015

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-14-00936-CV
———————————
JOEL D. MALLORY, JR., Appellant
V.
WEST BELLFORT PROPERTY OWNERS ASSOCIATION, Appellee

On Appeal from the County Civil Court at Law No. 4
Harris County, Texas
Trial Court Case No. 1039665

MEMORANDUM OPINION

Appellant, Joel D. Mallory, Jr. (“Mallory”), proceeding pro se, seeks to

appeal from the trial court’s order denying his motion for new trial, signed on

October 21, 2014, and from the trial court’s order granting the appellee’s no-

evidence motion for summary judgment, signed on August 6, 2014. The appellee,
West Bellfort Property Owners Association (“WBPOA”), has filed a motion to

dismiss the appeal for want of jurisdiction contending that the notice of appeal was

untimely. We agree, grant the motion, and dismiss the appeal.

On October 21, 2013, Mallory filed his petition against WBPOA contending

that WBPOA had engaged in debt collection activities against Mallory for

homeowner dues and had threatened to take foreclosure action against his property,

allegedly in violation of the Texas Debt Collection Practices Act (“DCPA”) and

the Texas Deceptive Trade Practices Act (“DTPA”). See TEX. FIN. CODE ANN.

§§392.304(a)(8), (19) (West Supp. 2014); TEX. BUS. & COM. CODE ANN.

§17.50(a)(3) (West Supp. 2014). On August 6, 2014, the trial court signed an

order granting WBPOA’s no-evidence motion for summary judgment and

dismissing with prejudice Mallory’s claims under the DCPA and DTPA. After

Mallory timely moved for a new trial, the trial court denied his motion for new trial

in an order signed on October 21, 2014. Mallory filed his notice of appeal of both

orders on November 20, 2014.

This Court only has jurisdiction over final, appealable judgments or

appealable interlocutory orders. See TEX. CIV. PRAC. & REM. CODE ANN.

§§51.012, 51.014(a)(1)–(12) (West Supp. 2014); Stary v. DeBord, 967 S.W.2d

352, 352–53 (Tex. 1998). “A judgment is final ‘if and only if either it actually

disposes of all claims and parties then before the court, regardless of its language,

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or it states with unmistakable clarity that it is a final judgment as to all claims and

all parties.’” In re Vaishangi, Inc., 442 S.W.3d 256, 259 (Tex. 2014) (quoting,

inter alia, Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192–93 (Tex. 2001)). The

trial court’s August 6, 2014 order granting WBPOA’s no-evidence motion for

summary judgment was a final judgment because, despite its language, it disposed

of all claims and parties before the court by dismissing the only two claims raised

in the petition. See id.; see also Lehmann, 39 S.W.3d at 192–93, 206.

Generally, a notice of appeal is due within thirty days after the final

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 id. at

26.1(a); TEX. R. CIV. P. 329b(a), (g). 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 (Tex. 1997).

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 Here, the trial court signed the final judgment dismissing Mallory’s action

on August 6, 2014, making the deadline for filing a notice of appeal September 6,

2014. See TEX. R. APP. P. 26.1. Mallory timely filed a motion for new trial on

August 26, 2014, extending his deadline for filing the notice of appeal to

November 4, 2014. See TEX. R. CIV. P. 329b(a); TEX. R. APP. P. 26.1(a)(1).

Although the trial court did not ruled on the motion for new trial until October 21,

2014, the deadline to file a notice of appeal was not extended beyond November 4,

2014. See Naaman v. Grider, 126 S.W.3d 73, 74 (Tex. 2003); Garza v. Hibernia

Nat’l Bank, 227 S.W.3d 233, 233 n.1, 234 (Tex. App.—Houston [1st Dist.] 2007,

no pet.); Powell v. Linh Nutrition Programs, Inc., No. 01-03-00919-CV, 2005 WL

375334, at *1 (Tex. App.—Houston [1st Dist.] Feb. 17, 2005, no pet.) (mem. op.)

(holding deadline for appealing from trial court’s order denying motion for new

trial runs from date of signing of final judgment, not from date of order denying

motion for new trial).

Appellant did not file his notice of appeal in the trial court until November

20, 2014, which was one day past the fifteen-day extension period ending on

November 19, 2014. See TEX. R. APP. P. 26.3(a). Appellant neither filed a motion

for extension of time to file the notice of appeal, nor can one be implied because

the notice of appeal was untimely filed. See TEX. R. APP. P. 26.3(b); Naaman, 126

S.W.3d at 74; Verburgt, 959 S.W.2d at 617–18.

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 On March 17, 2015, the Clerk of this Court notified Mallory that his appeal

was subject to dismissal for want of jurisdiction unless he responded, within

fourteen days of the Clerk’s notice, and showed how this Court had jurisdiction

over this appeal. Although Mallory failed to file a timely response, he filed a brief

on the merits on April 27, 2015, but that brief failed to address the jurisdictional

notice. See TEX. R. APP. P. 42.3(c).

On June 2, 2015, WBPOA moved to dismiss this appeal for want of

jurisdiction. On June 9, 2015, Mallory filed a response to the motion to dismiss

claiming that he had misunderstood that the trial court’s denial of his motion for

new trial had no impact on the appellate deadline, which he contended was a

reasonable explanation. In any event, Mallory further contended that his notice of

appeal was filed within the fifteen-day extension window under rule 26.3, thereby

implying a motion for extension of time and making his notice of appeal timely.

However, Mallory’s response does not adequately show that this Court has

jurisdiction over his appeal. As noted above, Mallory’s notice of appeal was filed

on November 20, 2014, which was one day past the fifteen-day extension window

ending on November 19, 2014. See TEX. R. APP. P. 26.3(a). Because the notice of

appeal was untimely filed, a motion for extension of time to file the notice of

appeal cannot be implied. See TEX. R. APP. P. 26.3(b); Naaman, 126 S.W.3d at 74;

Verburgt, 959 S.W.2d at 617–18; see also Russell & Smith Ford, Inc. v. Universal

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Underwriters of Tex. Ins. Co., No. 01-12-00441-CV, 2012 WL 3629043, at *1

(Tex. App.—Houston [1st Dist.] Aug. 23, 2012, no pet.) (mem. op.) (citing

Verburgt, 959 S.W.2d at 617) (“Once the fifteen-day period for granting a motion

for extension of time has passed, a party can no longer invoke the appellate court’s

jurisdiction.”). Without a timely filed notice of appeal, this Court lacks jurisdiction

over the appeal. See TEX. R. APP. P. 25.1.

Accordingly, we grant WBPOA’s motion and dismiss the appeal for want

of jurisdiction. See TEX. R. APP. P. 42.3(a), (c); 43.2(f). We dismiss any other

pending motions as moot.

PER CURIAM
Panel consists of Chief Justice Radack and Justices Higley and Massengale.

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