Debbie Tarver v. Josette Newberry and Monica Newberry ( 2015 )


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  •                                   NO. 12-15-00222-CV
    IN THE COURT OF APPEALS
    TWELFTH COURT OF APPEALS DISTRICT
    TYLER, TEXAS
    DEBBIE TARVER,                                    §     APPEAL FROM THE 1ST
    APPELLANT
    V.                                                §     JUDICIAL DISTRICT COURT
    JOSETTE NEWBERRY AND MONICA
    NEWBERRY,                                         §     SAN AUGUSTINE COUNTY, TEXAS
    APPELLEES
    MEMORANDUM OPINION
    PER CURIAM
    This appeal is being dismissed for want of jurisdiction. The trial court’s judgment was
    signed on April 23, 2015. Under the rules of appellate procedure, the notice of appeal must be
    filed within thirty days after the judgment is signed. See TEX. R. APP. P. 26.1. However, the
    underlying proceeding was a bench trial, and Appellant filed a timely request for findings of fact
    and conclusions of law. See TEX. R. CIV. P. 296. This extended Appellant’s time for filing the
    notice of appeal to July 22, 2015. See TEX. R. APP. P. 26.1(a) (providing that notice of appeal
    must be filed within ninety days after judgment signed if any party timely files request for
    findings of fact and conclusions of law). However, Appellant filed her notice of appeal on
    August 24, 2015. Thereafter, she filed a motion in this court requesting an extension of time to
    file the notice of appeal. See TEX. R. APP. P. 26.3.
    Rule 26.3 provides that a motion to extend the time for filing a notice of appeal must be
    filed within fifteen days after the deadline for filing the notice of appeal. 
    Id. Appellant’s notice
    of appeal was due to have been filed on or before July 22, 2015. Therefore, her motion for
    extension of time was due on or before August 6, 2015. However, Appellant filed the motion on
    September 11, 2015. Because the motion was not filed on or before August 6, 2015, it was
    untimely and must be overruled.1 See 
    id. A timely
    notice of appeal must be filed in order to invoke this court’s jurisdiction. See
    TEX. R. APP. P. 25.1(b). “Once the period for granting a motion for extension of time under Rule
    [26.3] has passed, a party can no longer invoke the appellate court’s jurisdiction.” Verburgt v.
    Dorner, 
    959 S.W.2d 615
    , 617 (Tex. 1997). Consequently, we overrule the motion for extension
    of time as untimely and dismiss the appeal for want of jurisdiction.
    Opinion delivered September 16, 2015.
    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
    (PUBLISH)
    1
    Appellant explains in her motion for extension of time that she received no notice of the signed judgment
    and therefore she never docketed the deadline for the notice of appeal. The procedure for extending the trial court’s
    plenary power, and ultimately the appellate deadlines, is not available to Appellant because she did not receive
    notice of the signed judgment within ninety days after its signing. See TEX. R. APP. P. 4.2(a)(1) (“But in no event
    may the [extended time period] begin more than 90 days after the judgment or order was signed.”); TEX. R. CIV. P.
    306a(5) (prescribing procedure for requesting additional time because of lack of notice of signed judgment); In re
    The Lynd Co., 
    195 S.W.3d 682
    , 685 (Tex. 2006) (requiring proof that notice of judgment was received more than
    twenty but less than ninety-one days after it was signed to extend postjudgment procedural timetables under Rule
    306a(5)).
    2
    COURT OF APPEALS
    TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
    JUDGMENT
    SEPTEMBER 16, 2015
    NO. 12-15-00222-CV
    DEBBIE TARVER,
    Appellant
    V.
    JOSETTE NEWBERRY AND MONICA NEWBERRY,
    Appellees
    Appeal from the 1st District Court
    of San Augustine County, Texas (Tr.Ct.No. CV-12-9397)
    THIS CAUSE came to be heard on the appellate record; and the same
    being considered, it is the opinion of this court that this court is without jurisdiction of the
    appeal, and that the appeal should be dismissed.
    It is therefore ORDERED, ADJUDGED and DECREED by this court that
    this appeal be, and the same is, hereby dismissed for want of jurisdiction; and that this decision
    be certified to the court below for observance.
    By per curiam opinion.
    Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.
    

Document Info

Docket Number: 12-15-00222-CV

Filed Date: 9/16/2015

Precedential Status: Precedential

Modified Date: 9/29/2016