David S. Shaheen v. Luckie's Auto & Truck Repair, Inc. ( 2009 )

Opinion filed July 30, 2009
In The
Eleventh Court of Appeals
___________
No. 11-09-00218-CV
__________
DAVID S. SHAHEEN, Appellant
V.
LUCKIE’S AUTO & TRUCK REPAIR, INC., Appellee
On Appeal from the 40th District Court
Ellis County, Texas
Trial Court Cause No. 76793
MEMORANDUM OPINION
David S. Shaheen appeals from the trial court’s take-nothing judgment. We dismiss for want
of jurisdiction.
The trial court signed its judgment on February 11, 2009. Shaheen timely filed both a request
for findings of fact and conclusions of law and a motion for new trial. In order to timely perfect an
appeal pursuant to TEX . R. APP . P. 26.1, the notice of appeal was due to be filed with the clerk of
the trial court on or before May 12, 2009 (ninety days after the date the judgment was signed). In
order to extend the time for filing the notice of appeal, both the notice of appeal and the motion for
extension of time should have been filed on or before May 27, 2009 (fifteen days after the original
due date). TEX . R. APP . P. 26.3.
Shaheen filed the notice of appeal on June 2, 2009. Shaheen filed a motion for extension of
time to file his notice of appeal on July 6, 2009. Neither the notice of appeal nor the motion meet
the time requirements of Rule 26.3.
In both his motion and his certificate of service on his notice of appeal, Shaheen states that
he mailed his notice of appeal on May 29, 2009, seventeen days after the original due date.
Therefore, we are unable to apply the mail box provision of TEX . R. APP . P. 9.2 to consider the notice
of appeal “filed” as of the date of mailing. Because the notice of appeal was not filed during the
Rule 26.3 fifteen-day time frame, we are unable to imply the timely filing of the motion under the
provisions of Verburgt v. Dorner, 959 S.W.2d 615 (Tex. 1997).
Absent compliance with Rules 26.1 and 26.3, the appellate jurisdiction of this court is not
invoked. Shaheen’s motion for extension of time to file his notice of appeal is overruled, and the
appeal is dismissed for want of jurisdiction.
PER CURIAM
July 30, 2009
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.
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