Opinion
No. 04-17-00217-CV
06-08-2017
Mohamad NAWAR, M.D., Appellant v. Jennifer June THOMPSON, Appellee
From the 83rd Judicial District Court, Val Verde County, Texas
Trial Court No. 32081
Honorable Enrique Fernandez, Judge Presiding
ORDER
Appellant Mohamad Nawar, M.D., attempts to appeal from the trial court's December 16, 2016 order denying his plea to the jurisdiction. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West Supp. 2016). The appeal is accelerated. See TEX. R. APP. P. 28.1(a). In an accelerated appeal, the notice of appeal must be filed within 20 days after the judgment or order is signed. TEX. R. APP. P. 26.1(b). Therefore, appellant's notice of appeal was due on January 5, 2017.
Appellant filed his notice of appeal in the trial court on April 6, 2017. Additionally, appellant filed in the trial court a "Motion to Extend Post Order Deadlines" stating that he did not receive notice of the entry of the trial court's December 16, 2016 order until April 5, 2016. In this motion, appellant relied on Rule 306a(4) of the Texas Rules of Civil Procedure, which extends the timetables for filing post-judgment motions when a party adversely affected by a judgment or an appealable order does not receive prompt notice or actual knowledge of the judgment or order. The trial court granted appellant's "Motion to Extend Post Order Deadlines" and signed an agreed order stating that "April 5, 2016 [] is the date upon which [appellant] first received notice or obtained actual knowledge of the Court's signing of the Order Denying the Plea to the Jurisdiction and any post order deadlines shall run from such date."
Rule 306a(4) of the Texas Rules of Civil Procedure provides,
If within twenty days after the judgment or other appealable order is signed, a party adversely affected by it or his attorney has neither received ... notice ... nor acquired
actual knowledge of the order, then with respect to that part all [postjudgment timetables] shall begin on the date that such party or his attorney received such notice of acquired actual knowledge of the signing, whichever occurred first, but in no event shall such periods begin more than ninety days after the original judgment or other appealable order was signed.TEX. R. CIV. P. 306a(4) (emphasis added). Similarly, the parallel appellate rule, Rule 4.2(a)(1) of the Texas Rules of Appellate Procedure, provides,
If a party affected by a judgment or other appealable order has not—within 20 days after the judgment or order is signed—either received the notice required by Texas Rule of Civil Procedure 306a.3 or acquired actual knowledge of the signing, then a period that, under these rules, runs from the signing will begin for that party on the earlier of the date when the party receives notice or acquires actual knowledge of the signing. But in no event may the period begin more than 90 days after the judgment or order is signed.TEX. R. APP. P. 4.2(a)(1) (emphasis added).
Here, appellant contended that he did not receive notice of the order denying the plea to the jurisdiction until April 5, 2017. The order was signed on December 16, 2016, and 90 days from that date was March 16, 2017. Because appellant learned of the order more than 90 days after it was signed, neither Rule 306a(4) nor Rule 4.2(a)(1) can operate to extend the time for filing appellant's notice of appeal. See In re Lynd Co., 195 S.W.3d 682, 684 n.2 (Tex. 2006) (orig. proceeding) ("Rule 306a(4) does not apply and cannot serve to extend a trial court's plenary power when a party learns of final judgment more than ninety days after it is signed."); Levit v. Adams, 850 S.W.2d 469, 470 (Tex. 1993) (explaining that "notice received after the 90thday is simply not covered by [rule 306a(4)]."). Therefore, appellant's notice of appeal, which was filed on April 6, 2017, was untimely.
The filing of a timely notice of appeal is jurisdictional. We must dismiss an appeal in the absence of a timely notice of appeal. See TEX. R. APP. P. 25.1(b); Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (holding that once the period for filing an extension of time to file a notice of appeal has passed, a party can no longer invoke the appellate court's jurisdiction).
We, therefore, order appellant to show cause in writing, no later than fifteen (15) days from the date of this order , why this appeal should not be dismissed for lack of jurisdiction.
/s/_________
Karen Angelini, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 8th day of June, 2017.
/s/_________
Luz Estrada
Chief Deputy Clerk