Mark Servinsky, PE and Servinsky Engineering, PLLC v. Carolines Garden, LLC
10-17-00051-CV
| Tex. App. | Mar 15, 2017Background
- Appellants Mark Servinsky, PE and Servinsky Engineering, PLLC sought to appeal the trial court’s December 16, 2016 order denying their motion to dismiss, characterizing it as an interlocutory appealable order under section 150.002(f).
- The order was signed December 16, 2016; under accelerated-appeal rules the notice of appeal was due within 20 days after signing.
- Appellants did not file their notice of appeal until February 21, 2017—more than 65 days after the order—and later filed a motion to extend time under Texas R. App. P. 10.5(b)(2).
- Rule 26.3 permits extension only if, within 15 days after the deadline for the notice, the party files a notice in the trial court and a motion for extension in the appellate court; the last day for seeking extension here was January 20, 2017.
- Appellants’ filings were untimely and any implied motion for extension (by filing a late notice) was not within the 15-day window; the court concluded it lacked jurisdiction and dismissed the appeal and motion for extension.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of notice of appeal (accelerated appeal deadline) | Notice of appeal filed Feb 21, 2017; appellants treated order as interlocutory under §150.002(f) and sought to appeal | Notice was due within 20 days after Dec 16, 2016; appellants’ notice was untimely | Court held notice was untimely; appeal not perfected and jurisdiction lacking |
| Motion/Implied motion for extension under Rule 26.3 | Appellants argued they did not receive notice of the order until Feb 10, 2017 and sought extension; alternatively an implied motion could arise from filing the notice | Even an implied motion would have to be filed within 15 days after the last day to file a notice; appellants filed well after that window | Court held extension unavailable because both notice and any motion for extension were filed after the 15-day extension window; appeal dismissed for want of jurisdiction |
Key Cases Cited
- Verburgt v. Dorner, 959 S.W.2d 615 (Tex. 1997) (timely notice or timely motion for extension is necessary to invoke appellate jurisdiction)