Opinion issued August 27, 2015




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                            NO. 01-15-00175-CV
                          ———————————
 MANOWAR AZIZ AND AB TRANSPORT AND TRUCKING, Appellants
                                      V.
ABDUL WARIS, INDIVIDUALLY, AND ON BEHALF OF PROGRESSIVE
        TRUCKING, INC., AS SHAREHOLDER, Appellee


               On Appeal from the 133rd Judicial District Court
                            Harris County, Texas
                     Trial Court Case No. 2013-09984


                        MEMORANDUM OPINION

        Appellants, Manowar Aziz and AB Transport and Trucking (“Aziz”),

attempt to appeal from the trial court’s final judgment, signed on December 19,

2014.     Appellee, Abdul Waris, Individually, and on behalf of Progressive

Trucking, Inc., as shareholder (“Waris”), has filed a motion to strike or deny
Aziz’s notice of appeal for want of jurisdiction contending that the notice of appeal

was untimely because his motion for new trial was untimely. We agree, construe

the motion as one to dismiss the appeal, grant the motion, and dismiss the appeal.

      Generally, a notice of appeal is due within thirty days after the final

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 id. at

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).

      Here, the trial court signed the final judgment awarding Waris monetary

damages on December 19, 2014, in his breach of contract action after a December

12, 2014 bench trial. Therefore, a motion for new trial was due by January 20,

2015, because thirty days after the December 19, 2014 signing of the final

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judgment was Sunday, January 18, 2015, and Monday, January 19, 2015, was a

legal holiday. See TEX. R. CIV. P. 4, 329b(a) (“A motion for new trial, if filed,

shall be filed prior to or within thirty days after the judgment or other order

complained of is signed.”). Aziz, through counsel, electronically filed a motion for

new trial that was file-stamped at 12:38:54 am on Wednesday, January 21, 2015,

making it untimely by about thirty-nine minutes. See TEX. R. CIV. P. 21(f)(1)

(requiring that in all non-juvenile civil cases, attorneys must electronically file

documents in courts where electronic filing has been mandated), (5) (stating that

document is considered timely filed if it is electronically filed at any time before

midnight on filing deadline).

      After Aziz filed the motion for a new trial on January 21, 2015, Waris filed a

motion to strike or deny that motion in the trial court, contending that the motion

was untimely filed one day past the January 20, 2015 deadline. Aziz filed a reply

in the trial court, asserting that, although the system showed his motion for new

trial was filed a few minutes after midnight on January 21, 2015, it should be

considered timely filed on January 20, 2015, which was the thirty-second day

following judgment because the thirtieth day was a Sunday and the thirty-first day

was a public holiday. See Williams v. Flores, 88 S.W.3d 631, 632 (Tex. 2002).

On February 16, 2015, the trial court struck and denied Aziz’s motion for a new

trial as untimely. Because Aziz’s motion for new trial was struck as untimely


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filed, it did not extend the deadline for filing his notice of appeal, which remained

due by January 20, 2015, or by February 4, 2015, with a fifteen-day extension. See

TEX. R. APP. P. 4, 26.1(a)(1), 26.3; see also Deaton v. Citibank, N.A., No. 01-12-

00752-CV, 2012 WL 5878111, at *1 (Tex. App.—Houston [1st Dist.] Nov. 21,

2012, no pet.) (per curiam) (mem. op.) (untimely motion for new trial does not

extend deadline for filing notice of appeal).

      Aziz filed an untimely notice of appeal in the trial court on February 22,

2015, more than thirty days after the trial court’s December 19, 2014 final

judgment. See TEX. R. APP. P. 26.1. Aziz did not file a motion for extension of

time to file the notice of appeal, nor can one be implied because the notice of

appeal was untimely filed. See id. at 26.3(b); Verburgt, 959 S.W.2d at 617–18.

Without a timely filed notice of appeal, this Court lacks jurisdiction over the

appeal. See TEX. R. APP. P. 25.1.

      On March 2, 2015, Waris moved to strike or deny Aziz’s notice of appeal in

this Court, which we construe as Waris’s motion to dismiss the appeal for want of

jurisdiction. Waris contends that since Aziz’s motion for new trial was stricken as

untimely, his notice of appeal was untimely. On June 4, 2015, because Aziz had

failed to respond to Waris’s motion to dismiss, this Court denied Aziz’s motion for

an extension of time to file his appellant’s brief without prejudice to refiling after

he timely filed a response to the motion to dismiss.


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      On June 11, 2015, Aziz filed a response to Waris’s motion to dismiss in this

Court, repeating his assertion that the Texas Supreme Court has held that a motion

for new trial filed on the thirty-second day after trial was timely if the thirtieth day

was a Sunday and the thirty-first day was a legal holiday. See Williams, 88 S.W.3d

at 632. Thus, Aziz contended that his motion for new trial should be deemed

timely because the final judgment was signed on a Friday, December 19, 2014, and

because the next two days were weekend days, the thirty-day clock to file a motion

for new trial did not begin counting until Monday, December 22, 2014, putting his

deadline to file a motion for new trial on January 22, 2015, and making his motion

for new trial timely filed on January 21, 2015.

      Aziz alternatively contended in his response that, even assuming that Waris

was correct that the thirty-day deadline to file his motion for new trial was Sunday,

January 18, 2015, and because the next day was a legal holiday, his deadline was

actually on Tuesday, January 20, 2015, this Court should not dismiss his notice of

appeal. Aziz’s counsel asserted, for the first time on appeal, that he had tried to

file his motion for new trial on the evening of January 20, 2015, but that “the efile

system kicked the filing back a couple of time[s] without any reason provided or

said that the filing was being uploaded,” and by the time his filing was accepted, it

had a file stamp a few minutes after midnight at 12:38 am on January 21, 2015.




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      Waris filed a reply, contending that Aziz’s computation of a January 22,

2015 deadline for the motion for new trial was based on an incorrect interpretation

of Rule 4 which only looks to whether the last day, not the first day, of a time

period is a weekend or legal holiday. See TEX. R. CIV. P. 4. Waris also asserted

that Aziz did not offer any proof to support his alternative argument that he had

attempted to file his motion for new trial on the evening of January 20, 2015.

Waris attached to his reply a sample confirmation from his electronic filing service

provider showing the time stamp of when he had transmitted a document, and

without such similar evidence, Aziz’s contention that he tried to file his motion on

the evening of January 20, 2015, should be rejected.

      As to Aziz’s contention about computation of time, we agree with Waris.

The trial court signed the final judgment on December 19, 2014, starting the count

on Saturday, December 20, 2014, not Monday, December 22, 2014. Thirty days

after December 20, 2014, was Sunday, January 18, 2015, and because Monday,

January 19, 2015, was a legal holiday, Aziz’s deadline to file a motion for new trial

or notice of appeal was January 20, 2015. See TEX. R. CIV. P. 4 (stating that “the

day of the act, event, or default, after which the designated period of time begins to

run is not to be included,” but “[t]he last day of the period so computed is to be

included, unless it is a Saturday, Sunday, or legal holiday, in which event the

period runs until the end of the next day which is not a Saturday, Sunday, or legal


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holiday.”). Thus, Aziz’s motion for new trial was untimely filed on January 21,

2015. Moreover, Aziz’s interpretation of the rules of civil procedure to exclude the

initial weekend from the calculation of the deadline to file a motion for new trial is

not an arguable interpretation of Rule 4 that could preserve the appeal. See Ryland

Enter., Inc. v. Weatherspoon, 355 S.W.3d 664, 665 (Tex. 2011).

      To the extent Aziz contends that the trial court erred in striking his motion

for new trial because he had attempted to e-file the motion on the evening of

January 20, 2015, he did not preserve this claim for appellate review by only

briefly referring to it in his reply before the trial court. See TEX. R. APP. P.

33.1(a)(1)(A). In any event, Aziz could have filed in the trial court, but did not

file, a motion seeking an extension of time to file his motion for new trial on the

basis that he had tried to file his motion for new trial through his electronic filing

service provider before midnight on January 20, 2015, but that there was a

technical failure or system outage that caused the untimely filing about thirty-nine

minutes late. See TEX. R. CIV. P. 21(f)(6) (stating that “[i]f a document is untimely

due to a technical failure or a system outage, the filing party may seek appropriate

relief from the court”); see also Ex parte Agostadero, No. 14–13–00975–CR, 2014

WL 1622772, at *1–2 (Tex. App.—Houston [14th Dist.] Apr. 22, 2014, pet. ref’d)

(mem. op., not designated for publication) (dismissing appeal after concluding

motion was untimely filed “about five minutes late” when appellant “did not allege


                                          7
or prove that the motion was transmitted to appellant’s electronic filing service

provider before midnight, or that there was a technical failure or system outage that

caused the untimely filing” of his motion to extend the time to file his notice of

appeal).

      Instead, Aziz claimed in the trial court that his motion for new trial should

be considered timely filed on January 20, 2015, which was the thirty-second day

after trial because the thirtieth day was a Sunday and the thirty-first day was a legal

holiday. Aziz did not sufficiently allege that any technical failure or system outage

caused the untimely filing of his motion for new trial in the trial court, and did not

offer any proof of such technical problems in this Court. Thus, Aziz’s response

does not adequately rebut Waris’s motion to dismiss to show that this Court has

jurisdiction over his appeal. As noted above, without a timely filed notice of

appeal, this Court lacks jurisdiction over the appeal. See TEX. R. APP. P. 25.1.

      Accordingly, we grant Waris’s motion and dismiss the appeal for want of

jurisdiction. See TEX. R. APP. P. 42.3(a), (c), 43.2(f). We dismiss any other

pending motions as moot.

                                   PER CURIAM
Panel consists of Chief Justice Radack and Justices Higley and Massengale.




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