Larry D. Ford v. Ana L. Leech M.D. Appeal from 165th District Court of Harris County (memorandum opinion per curiam)

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Opinion issued June 8, 2021 In The Court of Appeals For The First District of Texas ———————————— NO. 01-20-00539-CV ——————————— LARRY D. FORD, Appellant V. ANA L. LEECH, M.D., Appellee On Appeal from the 165th District Court Harris County, Texas Trial Court Case No. 2019-31523 MEMORANDUM OPINION Appellant, Larry D. Ford, filed a notice of appeal on July 24, 2020 attempting to appeal the trial court’s final order signed on October 26, 2019 granting appellee’s motion to dismiss the underlying suit because Ford failed to file a Chapter 74 expert report.1 Appellee has filed a motion to dismiss the appeal for want of jurisdiction because Ford’s notice of appeal was untimely. We grant the motion and dismiss the appeal. Absent a timely filed notice of appeal, an appellate court lacks jurisdiction over the appeal. TEX. R. APP. P. 25.1; In re United Services Auto. Ass’n, 307 S.W.3d 299, 307 (Tex. 2010). Generally, a notice of appeal is due within thirty days after the 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 TEX. R. APP. P. 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). 1 See TEX. CIV. PRAC. & REM. CODE § 74.351. 2 Here, the trial court signed the order from which Ford attempts to appeal on October 26, 2019. On March 9, 2020, Ford filed a “Motion for Trial Setting Preference Jones Act Preferential Trial Setting.” On March 16, 2020, Ford filed a second “Motion for Trial Setting Preference Jones Act Preferential Trial Setting.” Although Ford’s motions were entitled “Motion for Trial Setting Preference” both motions included a request that “all previous JUDGMENTS should be set aside.” Ford subsequently filed a Motion to Set Aside Judgment on June 30, 2020 that was followed by another Motion to Set Aside Judgment on July 13, 2020. Even considering the earliest of these post-trial motions—Ford’s March 9, 2020 Motion for Trial Setting Preference—as a motion for new trial, the motion was untimely. Motions for new trial are timely if filed within thirty days after the complained-of judgment or order is signed. TEX. R. CIV. P. 329b(a). Under this rule, Ford’s deadline for filing a motion for new trial was November 25, 2019. See TEX. R. CIV. P. 4; TEX. R. CIV. P. 329b(a). Because Ford’s motion for new trial was not timely, the motion did not extend the deadline for filing his notice of appeal. See TEX. R. APP. P. 26.1(a) (providing that timely filed motion for new trial extends time for filing notice of appeal). Therefore, Ford’s deadline to file his notice of appeal was November 25, 2019. See TEX. R. APP. P. 26.1. Ford’s notice of appeal was untimely filed on July 24, 2020, eight months after the Rule 26.1 deadline and well past the fifteen-day period in which Rule 26.3 3 authorizes us to grant an extension. Once the period for granting a motion for extension of time under Rule 26.3 has passed, a party can no longer invoke the appellate court’s jurisdiction. See Verburgt, 959 S.W.2d at 617; Brown Mech. Servs., Inc. v. Mountbatten Sur. Co., 377 S.W.3d 40, 44 (Tex. App.—Houston [1st Dist.] 2012, no pet.). Without a timely filed notice of appeal, this Court lacks jurisdiction over the appeal. See TEX. R. APP. P. 25.1. On September 25, 2020, appellee filed a motion to dismiss this appeal for want of jurisdiction due to the untimely notice of appeal. Ford failed to file an adequate response demonstrating our jurisdiction over the appeal.2 Accordingly, we grant appellee’s motion to dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a), 43.2(f). We dismiss any other pending motions as moot. PER CURIAM Panel consists of Justices Kelly, Landau, and Hightower. 2 Ford’s response argues that his untimely notice of appeal should be allowed because his failure to file by the deadline was “inadvertent” and cases should not be decided on “technicalities.” But the requirement of a timely notice of appeal is not a technicality, it is prerequisite for our jurisdiction. Nor are we at liberty to extend the notice of appeal deadline other than as provided in the appellate rules. See TEX. R. APP. P. 2 (stating that appellate courts may suspend rule’s operation in particular case but may not “alter the time for perfecting an appeal in a civil case”). 4

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