Appellate court without jurisdiction to hear appeal from granting of plea since notice of appeal missed 35 day deadline

Hetul Bhakta d/b/a Budget Inn v. Tex Dept of Transportation, 04-14-00063-CV (Tex. App. –  San Antonio, April 16, 2014).

This case will mainly be of interest to litigators as it deals with the appellate rules for perfecting appeals.  The opinion does not mention the nature of the underlying suit, only that the trial court granted TxDOT’s plea to the jurisdiction. Bhakta timely filed a motion for reconsideration and filed his notice of appeal within 57 days.

The court held that since Bhakta was appealing the grant of a plea to the jurisdiction, he had 20 days to file a notice of appeal and a motion to reconsider does not toll that deadline. A motion to extend the time to file a notice of appeal can be granted if, within 15 days after the deadline to file the notice of appeal, the appellant properly files a motion to extend time. TEX. R. APP. P. 26.3, 10.5(b)( l )-(2). Such a motion is implied if an appellate files a notice of appeal within the 15 day time period, but the appellate must offer a reasonable explanation for failing to timely file a notice of appeal. However, once the 15 days expires, the appellate court is without jurisdiction to hear the appeal. Bhakta did not timely file a notice of appeal or motion for extension so the court dismissed for lack of jurisdiction.

This highlights a procedural point which many plaintiff attorneys may not fully comprehend. Normally, when a case is dismissed at the trial court level, the plaintiff has 30 days to file a notice of appeal.  That is, unless the dismissal is based on the grant of a plea to the jurisdiction in which case the time period is 20 days.  And since the case law out there notes that a motion for summary judgment which grants dismissal on a jurisdictional ground is to be treated as a plea to the jurisdiction, the 20 day deadline can arguably apply in such a case. This can cause an attorney to miscalculate the deadline and they are more likely to miss it.

If you would like to read this two page opinion click here. Panel: Justice Marion, Justice Barnard, and Justice Martinez. Per Curiam opinion. The attorney listed for Bhakta is Aloysius Peter Thaddeus Jr.  The attorney listed for Bellender Construction is Steve Snelson.  The attorney listed for TxDOT is Betsy Jane Johnson.