Joseph L. Ford, III v. Martin Mozeley Graeme Mozeley Daniel Edone And Classiques Jaguar ( 1994 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-94-520-CV





JOSEPH L. FORD III,

APPELLANT

vs.





DANIEL EDONE, GRAEME MOZELEY, MARTIN MOZELEY, AND CLASSIQUES JAGUAR,

APPELLEES

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT

NO. 490,841, HONORABLE MARY PEARL WILLIAMS, JUDGE

PER CURIAM

Appellant Joseph L. Ford III seeks to appeal from a judgment of the district court of Travis County rendered in his suit against appellees Daniel Edone and D Power, Inc. and appellees, third-party defendants, Martin Mozeley, Graeme Mozeley and Classiques Jaguar. On September 27, 1994, the Clerk of this Court filed Ford's motion for an extension of time to file the record and docketed the appeal. See Tex. R. App. P. 18, 57(a). By letter, the Clerk advised Ford that this Court had not yet received a transcript in the appeal and that the appeal was subject to dismissal for failure to file the transcript. See Tex. R. App. P. 60(a)(2). Ford responded with a motion for an extension of time to file the transcript. We will overrule that motion and dismiss the appeal.

Ford timely perfected an appeal when he filed a cash bond with the district clerk of Travis County. See Tex. R. App. P. 40(a), 41(a)(1). The transcript and statement of facts were due in this Court on August 22; any motion for extension of time was due no later than September 5. ⁽¹⁾ Tex. R. App. P. 54(a), (c). Appellant tendered his motion for extension of time to file the transcript on October 17, 1994. ⁽²⁾ The Clerk of this Court received the transcript on November 4.

This Court has no jurisdiction to consider a late-filed motion for an extension of time to file a transcript. Tex. R. App. P. 54(c); Migura v. Migura, 730 S.W.2d 18, 19 (Tex. App.--Corpus Christi 1987, no writ); see Trans-Continental Properties, Ltd. v. Taylor, 717 S.W.2d 890, 891 (Tex. 1986); B.D. Click Co. v. Safari Drilling Corp., 638 S.W.2d 860, 862 (Tex. 1982). Because Ford tendered his motion beyond the applicable time period, we overrule Ford's October 17 motion for an extension of time to file the transcript.

We note that Ford filed a motion for an extension of time to file the statement of facts and transcript with the district clerk of Travis County on August 31. Although it would have been timely pursuant to Rule 54(c), that motion does not confer authority upon this Court to grant an extension of time to file the transcript. The motion is directed to the district court and, as to the transcript, offers no reasonable explanation for the need for an extension. See Tex. R. App. P. 54(a); National Union Fire Ins. Co. v. Ninth Court of Appeals, 864 S.W.2d 58, 59 (Tex. 1993) (appellate court may not grant motion to file transcript late that lacks reasonable explanation of need for extension). The motion did not come into the custody or control of the Clerk of this Court until November 4 when the transcript was tendered for filing. See Mr. Penguin Tuxedo Rental & Sales, Inc. v. NCR Corp., 787 S.W.2d 371, 372 (Tex. 1990); Standard Fire Ins. Co. v. La Coke, 585 S.W.2d 678, 681 (Tex. 1979) (instrument is deemed filed when placed in custody or control of clerk).

An appellate court may dismiss an appeal for the failure to file a transcript timely. Tex. R. App. P. 54(a); see Trans-Continental Properties, 717 S.W.2d at 891; Smith v. Smith, 835 S.W.2d 187, 190 (Tex. App.--Tyler 1992, no writ). Furthermore, in the absence of a timely-filed transcript, Ford has not shown that he properly perfected his appeal. If he has not done so, we have not acquired jurisdiction over the appeal. Willis v. Texas Dept. of Corrections, 834 S.W.2d 953 (Tex. App.--Tyler 1992, no writ); Gonzalez v. Doctors Hosp.--E. Loop, 814 S.W.2d 536, 537 (Tex. App.--Houston [1st Dist.] 1991, no writ); see Davies v. Massey, 561 S.W.2d 799, 801 (Tex. 1978) (filing a cost bond is necessary and jurisdictional step in taking appeal). Accordingly, we must dismiss the appeal.

The appeal is dismissed.

Before Chief Justice Carroll, Justices Jones and Kidd

Dismissed

Filed: November 23, 1994

Do Not Publish

1. ¹  These are the due dates based on the filing of a motion for new trial. See Tex. R. App. P. 54(c). The docket sheet included in the transcript shows that Edone and D Power, Inc. filed a timely motion for new trial on May 20. However, that motion is not included in the transcript.

2. ²  Ford tendered a "Motion for Extension of Time to File Transcript" on September 27. Because the motion requested an extension of time to file a statement of facts, the Clerk of this Court docketed the motion as a request for an extension of time to file the record. This motion was also submitted beyond the time within which to file a motion for extension; therefore, we have no jurisdiction to consider it. Tex. R. App. P. 54(c); Wells v. Kansas Univ. Endowment Ass'n, 825 S.W.2d 483, 487 (Tex. App.--Houston [1st Dist.] 1992, writ denied). We dismiss the September 27 motion because we overrule the motion for an extension of time to file the transcript and dismiss the appeal.