Opinion
NO. 12-12-00394-CV
11-30-2012
GARRAND CONSTRUCTION COMPANY, INC., APPELLANT/CROSS-APPELLEE v. RANDY MCLAIN d/b/a MCLAIN'S PAVING & SEALCOATING, APPELLEE/CROSS-APPELLANT
APPEAL FROM THE
JUDICIAL DISTRICT COURT
NACOGDOCHES COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
This appeal is being dismissed for want of jurisdiction pursuant to Texas Rule of Appellate Procedure 42.3(a). The trial court's judgment was signed on August 1, 2012. 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. But when, as here, the appellant timely files a request for findings of fact and conclusions of law and those findings and conclusions could properly be considered by the appellate court, the notice of appeal must be filed within ninety days after the judgment is signed. See TEX. R. APP. P. 26.1(a)(4). Applying this rule, Appellant's notice of appeal was due to have been filed no later than October 30, 2012.
Appellant did not file its notice of appeal until November 19, 2012. The following day, Appellant filed a motion in this court to extend the time for filing its notice of appeal. Such an extension is permitted if, within fifteen days after the deadline for filing the notice of appeal, the party files the notice in the trial court and a motion for extension of time in the court of appeals. TEX. R. APP. P. 26.3. In this case, however, Appellant's motion for extension of time was due not later than November 14, 2012. Because Appellant did not file its motion until November 20, 2012, the motion was untimely, and must be overruled.See id.
Because the notice of appeal was not filed within the time for filing the motion to extend the time for filing, we do not imply such a motion as permitted by the holding in Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997).
Because this court is not authorized to extend the time for perfecting an appeal except as provided by Texas Rules of Appellate Procedure 26.1 and 26.3, the motion to extend the time for filing the notice of appeal is overruled, and the appeal is dismissed for want of jurisdiction. See TEX. R.APP. P. 42.3(a). Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(PUBLISH)
JUDGMENT
NO. 12-12-00394-CV
GARRAND CONSTRUCTION COMPANY, INC., Appellant/Cross-Appellee
V.
RANDY MCLAIN d/b/a MCLAIN'S PAVING & SEALCOATING, Appellee/Cross-Appellant
Appeal from the Judicial District Court
of Nacogdoches County, Texas. (Tr.Ct.No. C0925896)
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., Griffith, J., and Hoyle, J.