Summary
denying appellant's motion for extension of time to file notice of appeal because request for findings and conclusions was untimely, trial court was not required to rule on it, and notice of appeal was filed beyond fifteen-day extension period
Summary of this case from Zhuang v. ZhangOpinion
No. 14-06-00583-CV
Memorandum Opinion filed August 3, 2006.
On Appeal from the 247th District Court, Harris County, Texas, Trial Court Cause No. 03-39054.
Dismissed.
Panel consists of Chief Justice HEDGES and Justices YATES and SEYMORE.
MEMORANDUM OPINION
This is an attempted appeal from a judgment signed March 10, 2006. Appellant filed a timely motion for new trial. Appellant's notice of appeal, accompanied by a motion for extension of time, was filed on June 26, 2006.
When appellant has filed a timely motion for new trial, motion to modify the judgment, motion to reinstate, or request for findings of fact and conclusion of law, the notice of appeal must be filed within ninety days after the date the judgment is signed. See TEX. R. APP. P. 26.1(a). An appellate court may extend the time to file the notice of appeal if appellant files his notice of appeal and a motion to extend time to file the notice of appeal within fifteen days after the deadline. TEX. R. APP. P. 26.3.; see also Verburgt v. Dorner, 959 S.W.2d 615, 617-18 (1997) (construing the predecessor to Rule 26).
Appellant's notice of appeal and motion for extension of time were not filed within the fifteen-day period provided by rule 26.3. The ninetieth day after judgment was June 8, 2006. The fifteen day grace period provided in Rule 26.3 expired on June 23, 2006. Appellant acknowledges that his notice of appeal was not filed until June 26, 2006.
On July 17, 2006, notification was transmitted to all parties of the court's intention to dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a). Appellant filed a response on July 27, 2006. Appellee filed responses objecting to appellant's motion to extend time to file the notice of appeal and in support of this court's proposed dismissal.
In his response, appellant asserts that he filed a request for findings of fact and conclusions of law on April 6, 2006, and no findings and conclusions have been filed. He asserts that he has been unable to determine what issues might be raised on appeal in the absence of findings and conclusions. Appellant's request for findings and conclusions was untimely. The request for findings of fact and conclusions of law was due no later than twenty days after the date the judgment was signed, which in this case was March 30, 2006. TEX. R. CIV. P. 296. Because the request was not filed timely, the trial court was not required to make findings and conclusions.
The two cases appellant cited in his response do not support this court's jurisdiction. See Coey v. Texas Dept. of Family and Protective Services, 2006 WL 1358490, *1 (Tex.App.CAustin May 19, 2006, no pet.) (mem. op.) (holding that statement of points on appeal filed within time period for filing motion for extension of time to file a notice of accelerated appeal was sufficient to invoke jurisdiction over appeal from termination decree); Finley v. J.C. Pace Ltd., 4 S.W.3d 319, 321 (Tex.App.CHouston [1st Dist.] 1999, no pet.) (holding that timely tendered motion for new trial extends appellate timetable regardless of when filing fee is paid).
Once the fifteen-day extension period for filing a notice of appeal has passed without filing a notice of appeal, a party can no longer invoke the appellate court's jurisdiction. Verburgt, 959 S.W.2d at 617; In re Estate of Padilla, 103 S.W.3d 563, 567 (Tex.App.CSan Antonio 2003, no pet.). A timely notice of appeal is essential to invoke our appellate jurisdiction. In re A.L.B., 56 S.W.3d 651, 652 (Tex.App.CWaco 2003, no pet.). If the notice is untimely, then the court of appeals can take no action other than to dismiss the proceeding. Id. Because the notice of appeal in this case was filed beyond the fifteen-day extension period, we have no choice but to dismiss the appeal.
Accordingly, we deny appellant's motion for extension of time to file his notice of appeal. The appeal is ordered dismissed for want of jurisdiction.