Crown Equity LLLP And Crown Innovations, LLC v. Benjamin Parker Georgetown Balance Wellness, LLC Alfred N. Kay, Jr. And Law Offices of Kelley F. Whalen

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-16-00389-CV

Crown Equity LLLP; and Crown Innovations, LLC, Appellants

v.

Benjamin Parker; Georgetown Balance Wellness, LLC; Alfred N. Kay, Jr.;
and Law Offices of Kelley F. Whalen, Appellees

FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT
NO. 16-0298-C368, HONORABLE RICK J. KENNON, JUDGE PRESIDING

MEMORANDUM OPINION

Appellees Alfred N. Kay, Jr. and Law Offices of Kelley F. Whalen filed a motion

to dismiss this appeal for lack of jurisdiction, arguing that appellants Crown Equity LLLP and

Crown Innovations, LLC filed an untimely notice of appeal. See Tex. R. App. P. 26.1. Appellees

Benjamin Parker and Georgetown Balance Wellness, LLC also filed a motion to dismiss on identical

grounds. Appellees note that the orders granting their respective motions for summary judgment

became final and appealable on March 24, 2016, when the court severed all of the appellants’ claims

against them into a new cause number, 16-0298-C368.

After the time for filing a notice of appeal and seeking an extension of time to file

the notice of appeal have expired, a party cannot invoke an appellate court’s jurisdiction. See

Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). Motions for new trial are timely if filed

within thirty days after the judgment is signed. Tex. R. Civ. P. 329b(a). Under this rule, appellants’
deadline for filing their motion for new trial was April 25, 2013. See Tex. R. Civ. P. 4, 329b(a).

Appellants’ June 2, 2016 notice of appeal contends that they filed a motion for new trial on April 18,

2016, “prior to this cause being severed.”1 See Tex. R. App. P. 26.1(a) (providing that certain

postjudgment motions extend time for filing notice of appeal).

However, the record reflects that the cause was severed on March 24, 2016,2

before appellants filed their motion for new trial. Further, appellants filed their motion for new trial

in the wrong cause, designating that filing in the original cause number (11-993-C368) containing

the remaining parties and claims, and not the severed cause (16-0298-C368) making the appellees’

summary judgments final.3 Appellants’ misfiled motion for new trial did not extend their deadline

for filing their notice of appeal, and the time to seek an extension for filing the notice of appeal

has expired. See Tex. R. App. P. 26.3; Philbrook v. Berry, 683 S.W.2d 378, 379 (Tex. 1985)

(concluding that motions for new trial must be filed in same cause as judgment that motion

assails); see also Levin v. Espinosa, No. 03-14-00534-CV, 2015 Tex. App. LEXIS 1470, at *3, *9

1
Appellants do not renew this contention in their response to the motions to dismiss, and
the record disproves it.
2
On the same day, counsel for the Kay and Whalen appellees sent an e-mail to all counsel
notifying them that the court had signed an order granting his clients’ motion for summary judgment
and “severing those claims into a new cause that will bear the number 16-0298-C368.” Counsel for
the remaining appellees also sent an e-mail that day to all counsel notifying them that the court
granted her clients’ motion for summary judgment and attaching a copy of the order.
3
In response to appellees’ motions to dismiss, appellants contend that they were unable to
e-file their motion for new trial in the severed cause and that the “Williamson County Clerk’s
office” could identify only the original cause number. We note that the original and severed causes
were district court causes and that inquiries about them should have been made to the office of
the district clerk, not the county clerk. Further, appellants’ contention that they intended to file their
motion for new trial in the severed cause is inconsistent with the fact that the caption to their motion
contains the original cause number, and not the severed one.

2
(Tex. App.—Austin Feb. 13, 2015, no pet.) (mem. op.) (citing Philbrook and holding that motion

for new trial misfiled in original cause number did not extend deadline for filing appeal from

judgment in severed cause).

Accordingly, appellants’ June 2, 2016 notice of appeal from the March 24, 2016

judgment is untimely, and we lack jurisdiction over this appeal. See Tex. R. App. P. 26.1; Verburgt,

959 S.W.2d at 617; see also Levin, 2015 Tex. App. LEXIS 1470, at *9. We grant appellees’ motions

and dismiss this appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a).

Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Goodwin and Bourland

Dismissed on Appellees’ Motions

Filed: July 13, 2016

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