Full Opinion

Opinion issued September 18, 2026 In The Court of Appeals For The First District of Texas ———————————— NO. 01-24-01018-CV ——————————— MIGUEL POPOVICH, Appellant V. ALEXA POPOVICH, BAYLIE POPOVICH, AND CASSIDY POPOVICH, Appellees On Appeal from the Probate Court No. 1 Harris County, Texas Trial Court Case No. 497498 MEMORANDUM OPINION This appeal arises from a probate proceeding involving the estate of Gaston Moises Popovich. Miguel Popovich—Gaston’s brother—purports to appeal from the probate court’s final judgment determining heirship and granting independent administration. Yet the only argument he raises on appeal is that the probate court erroneously denied his motion for new trial as untimely. Because Miguel has not demonstrated any reversible error by the probate court, we affirm. Background Gaston, a retired firefighter and entrepreneur, passed away in April 2021 after a year-long battle with multiple myeloma lymphoma cancer. Shortly after Gaston’s death, Miguel produced a will purportedly signed by Gaston the day before his death while he was in the hospital. Under the terms of the will, Miguel was appointed independent executor and received the bulk of Gaston’s estate. Gaston’s daughters—Alexa Popovich, Baylie Popovich, and Cassidy Popovich—received Gaston’s personal property and his Texas Fire Fighters Federal Credit Union Pension. Gaston’s daughters, contending that Gaston died without a will, applied for a determination of heirship. They also filed a petition for declaratory judgment and application for temporary restraining order and temporary injunction “in order to protect the Estate . . . from the fraud and conversion of Miguel . . ., to declare the April 29, 2021 Will of Gaston Moises Popovich invalid, and to declare the Estate’s rights in real property which Miguel improperly and without authority removed from the Estate.” 2 Miguel opposed the application for determination of heirship. He in turn filed an application for probate of a copy of the will―contending that the original will was taken from Gaston’s home. The parties’ disputes were ultimately tried to a jury. The jury found that: 1. The will did not meet the requirements for a valid will; 2. The cause of the nonproduction of the original will was not sufficient to show that the original will could not by reasonable diligence be produced; 3. Gaston did not have testamentary capacity to sign the will; 4. Gaston signed the will as a result of undue influence; 5. Miguel did not act in good faith and with just cause in attempting to probate the will; 6. Gaston’s daughters acted in good faith and with just cause in contesting the validity of the will; and 7. Gaston’s daughters incurred $230,000 to contest the validity of the will. On November 21, 2024, the probate court signed an order granting independent administration, declaring that Gaston died intestate, and appointing Alexa to serve as independent administrator of Gaston’s Estate. The same day, the probate court also signed a judgment declaring Alexa, Baylie, and Cassidy as Gaston’s heirs. 3 On Monday, December 23, 2024, the 30th day after the judgment was signed, Miguel attempted to file a motion for new trial.1 But his filing was rejected by the district clerk’s office for failure to pay the filing fee. He refiled the motion for new trial on December 26.2 The record contains no order disposing of Miguel’s motion for new trial and, although a hearing was held on the motion for new trial on January 29, 2025, no transcript from that hearing appears in our record. On December 23, 2024, Miguel also timely filed a notice of appeal from the probate court’s “Final Judgment of Heirship, and Independent Administration, signed Nov. 21, 2024.” Motion for New Trial On appeal, Miguel raises a single issue contending that the probate court “erred in denying jurisdiction” over his motion for new trial because it was timely filed. According to Miguel, at the January 29 hearing, the probate court “denied proceeding with the hearing stating lack of jurisdiction” because the motion for new trial was untimely and orally prohibited him from filing a motion for reconsideration. 1 Because the 30th day fell on a Saturday, the deadline to file the motion for new trial was extended to Monday, December 23. See TEX. R. CIV. P. 4, 329b(b). 2 Thereafter, Miguel filed two amended and supplemental motions for new trial. He also filed a motion for reconsideration. 4 And he requests that this Court “reverse and render judgment recognizing jurisdiction or, alternatively, remand for a hearing on the [motion for new trial].” But even assuming for the sake of argument that the probate court erred in dismissing Miguel’s motion for new trial as untimely―we still cannot grant Miguel the relief he seeks. A timely filed motion for new trial does two things for purposes of an appeal. First, it extends the appellate timetable to allow a party to file his notice of appeal within 90 days—rather than 30—of the date the judgment is signed. See TEX. R. APP. P. 26.1(a). An untimely motion for new trial, on the other hand, does not extend the appellate timetable and any notice of appeal must be filed within 30 days of the date the judgment is signed. See TEX. R. APP. P. 26.1. Without a timely notice of appeal, an appellate court lacks jurisdiction over an attempted appeal. See Mitschke v. Borromeo, 645 S.W.3d 251, 260–61 (Tex. 2022). But that is not the case here. Miguel did not rely on his motion for new trial to extend the appellate timetable and instead filed his notice of appeal on December 23, 2024—within 30 days of the date the probate court’s final judgment declaring heirship. See TEX. R. APP. P. 26.1.3 Thus, his notice of appeal was timely filed, regardless of the probate 3 The judgment in a proceeding to declare heirship is a final judgment. See TEX. EST. CODE § 202.202(a). The judgment declaring heirship was signed on November 21, 5 court’s ultimate decision on the motion for new trial. And although Miguel presents this appeal as one raising issues of jurisdiction, we plainly have jurisdiction over this appeal. But whether the motion for new trial was timely filed does have a significant effect on the scope of what can be considered in this appeal. That brings us to the second purpose of a timely filed motion for new trial—which is to preserve certain complaints for appeal. See TEX. R. CIV. P. 324(b).4 If a motion for new trial is not timely filed, it is treated as a nullity for purposes of preserving issues for appellate review. See Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003). Thus, Miguel is correct in his assertion that the probate court’s ruling on the timeliness of his motion for new trial, to the extent that there was one,5 affects his substantive rights on appeal. In that regard, even if Miguel’s motion for new trial was timely, he would not be entitled to the relief that he seeks―i.e., that this Court “reverse and render 2024. Thirty days from that date was Saturday, December 21, making Miguel’s notice of appeal due on Monday, December 23. See TEX. R. APP. P. 4.1, 26.1. 4 For example, a motion for new trial is a prerequisite to bringing a complaint on appeal that there was factually insufficient evidence to support a jury finding, that a jury finding was against the overwhelming weight of the evidence, and that there was incurable jury argument. See TEX. R. CIV. P. 324(b)(2), (3), (5). 5 Although Miguel argues that the probate court denied jurisdiction over his motion for new trial because it was untimely filed, there is nothing in the record that reflects that ruling. There is neither a written order nor a transcript from a hearing that reflects such a ruling. 6 judgment recognizing jurisdiction or, alternatively, remand for a hearing on the [motion for new trial].” Instead, assuming adequate briefing in this Court, the remedy would be that arguments that were required to be raised in a new trial motion could be considered by us on appeal. See TEX. R. CIV. P. 324(b). But Miguel did not timely assert, although he could have, any of the arguments raised in his motion for new trial—or any substantive arguments at all for that matter—in his brief on appeal. Instead, he chose only to challenge the probate court’s purported decision to deny his motion for new trial as untimely.6 Without tying his timeliness argument to any substantive argument challenging the probate court’s judgment itself, or the merits of his motion for new trial, Miguel has not 6 We note that Miguel framed his brief as an “Initial Appellate Brief Based on Jurisdiction,” and stated that he “believes the issue of jurisdiction must be addressed before proceeding with the appeal and files this Appellate Brief addressing jurisdiction first with a subsequent Appellate Brief to be filed addressing the main issues of the appeal.” Miguel did not request an extension of time to file his appellant’s brief but rather filed this “initial” brief well within the deadline to file his appellate brief. See TEX. R. APP. P. 38.6(a). And, at that time, he did not request leave to file any “subsequent” brief. Only after appellees filed their brief, and over three months after he filed his “initial” brief, did Miguel move for leave to amend his brief and filed an amended brief raising seven new substantive issues challenging the probate court’s final judgment. These new issues could have been raised by Miguel in his initial brief but were not. Accordingly, we denied Miguel’s motions to amend and struck his amended brief filed on September 30, 2025. See, e.g., Enriquez v. Morsy, No. 01-22-00622-CV, 2023 WL 7311220, at *7 n.20 (Tex. App.—Houston [1st Dist.] Nov. 7, 2023, pet. denied) (mem. op.) (likening appellant’s request to supplement his opening brief to raise new issues to situation where appellant has attempted to raise new issue in reply brief and, therefore, denying appellant’s motion to supplement his brief and striking his supplemental brief). 7 shown that there is any error requiring reversal. See TEX. R. APP. P. 44.1(a) (“No judgment may be reversed on appeal . . . unless the court of appeals concludes that the error complained of: (1) probably caused the rendition of an improper judgment; or (2) probably prevented the appellant from properly presenting the case to the court of appeals.”). Conclusion Accordingly, for the above reasons, we affirm the judgment of the probate court in all things. Terry Adams Chief Justice Panel consists of Chief Justice Adams and Justices Guiney and Johnson. 8