Darrell Powell v. Girly Girl, L.P., D/B/A McDonald's and Juan R. Diaz

Opinion issued March 10, 2015

In The

Court of Appeals

For The

First District of Texas

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NO. 01-14-00654-CV

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DARRELL POWELL, Appellant

V.

GIRLY GIRL, L.P., D/B/A MCDONALD’S, AND JUAN R. DIAZ, Appellees

On Appeal from the 295th District Court

Harris County, Texas

Trial Court Case No. 2012-65133

MEMORANDUM OPINION

Appellant, Darrell Powell, attempts to appeal from an order denying his

motion for rehearing signed on June 18, 2014, and has filed a motion for extension

of time to file his notice of appeal. Appellees, Girly Girl, L.P., d/b/a McDonald’s,

and Juan R. Diaz, have filed a motion to dismiss the appeal for want of

jurisdiction. We deny appellant’s motion, grant appellees’ motion, and dismiss the

appeal.

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 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); see also TEX. R. CIV. P. 297, 329b(a), (g). The time to file

a notice of appeal also may 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.

Here, the trial court signed an order granting appellees’ traditional and

no-evidence motions for summary judgment on all claims asserted against them on

April 3, 2014. Appellant timely filed a motion seeking rehearing or reconsideration

of that order. See TEX. R. CIV. P. 329b(a), (g). Accordingly, his notice of appeal

was due on July 2, 2014, or by July 17, 2014, with a fifteen-day extension. See

TEX. R. APP. P. 26.1(a), 26.3; see also TEX. R. CIV. P. 329b(g); Lane Bank Equip.

Co. v. Smith So. Equip. Co., 10 S.W.3d 308, 313 (Tex. 2000) (holding timely filed

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post-judgment motion that seeks substantive change in existing judgment qualifies

as motion to modify and extends appellate timetable).

Appellant did not file his notice of appeal and motion for an extension of

time to file his notice of appeal until August 4, 2014. In his motion, he asserts that

his motion for extension was timely because the deadlines ran from June 18, 2014,

the date the trial court signed the order denying his motion for rehearing. However,

the deadline for filing a notice of appeal did not run from that date but ran from the

date of the signing of the summary judgment order. See 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.) (citing Naaman v. Grider,

126 S.W.3d 73, 74 (Tex. 2003)); see also Fletcher v. Ahrabi, No. 01-12-00794-

CV, 2012 WL 6082915, at *1 (Tex. App.—Houston [1st Dist.] Dec. 6, 2012, no

pet.) (mem. op.) (citing Overka v. Bauri, No. 14-06-00083-CV, 2006 WL 2074688

at *1 & n.1 (Tex. App.—Houston [14th Dist.] July 27, 2006, no pet.) (mem. op.))

(“An order denying a motion for new trial is not independently appealable”).

Accordingly, appellant’s motion to extend the deadline to file his notice of appeal

was untimely and cannot extend the deadline. See TEX. R. APP. P. 26.3. Appellant’s

notice of appeal, filed on August 4, 2014, was untimely. Without a timely filed

notice of appeal, this Court lacks jurisdiction over the appeal. See Tex. R. App. P.

25.1.

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Accordingly, we deny appellant’s motion, grant appellees’ motion, and

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 Chief Justice Radack and Justices Brown and Lloyd.

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