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In re Interest of C.D.P.

State of Texas in the Fourteenth Court of Appeals
Jun 6, 2017
NO. 14-16-00334-CV (Tex. App. Jun. 6, 2017)

Summary

dismissing restricted appeal for want of jurisdiction because appellant timely filed a motion for new trial and appellant's notice of appeal was not timely as a notice of regular appeal

Summary of this case from Daulton Point, LLC v. Schoggins

Opinion

NO. 14-16-00334-CV

06-06-2017

IN THE INTEREST OF C.D.P., A MINOR CHILD


On Appeal from the 245th District Court Harris County, Texas
Trial Court Cause No. 2008-19287

MEMORANDUM OPINION

This is an attempted appeal from a judgment signed January 19, 2016. Appellant Joshua Perkins filed a notice of appeal on April 19, 2016. The notice of appeal states that this is a restricted appeal. See Tex. R. App. P. 30. Texas Rule of Appellate Procedure 30, entitled "Restricted Appeal to Court of Appeals in Civil Cases," provides:

A party who did not participate - either in person or through counsel - in the hearing that resulted in the judgment complained of and who did not timely file a postjudgment motion or request for findings of fact and conclusions of law, or a notice of appeal within the time
permitted by Rule 26.1(a), may file a notice of appeal within the time permitted by Rule 26.1(c)."
Tex. R. App. P. 30. Appellant filed a timely motion for new trial on February 4, 2016. Thus, a restricted appeal was unavailable to him. See Tex. R. App. P. 30; Muirhead v. Muirhead, No. 01-16-00950-CV, 2017 WL 976078, at *1 (Tex. App.—Houston [1st Dist.] 2017, Mar. 14, 2017, no pet. h.).

Even if we were to construe appellant's notice of appeal as a notice of regular appeal, appellant's notice of appeal would not be timely. The notice of appeal must be filed within 90 days after the judgment is signed if a party files a motion for new trial. Tex. R. App. P. 26(a)(1). Because the notice of appeal was filed within 15 days of the due date, a motion for extension of time is implied. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). Even when an extension of time is implied, appellant still is obligated to come forward with a reasonable explanation to support the late filing. See Miller v. Greenpark Surgery Ctr. Assocs., Ltd., 974 S.W.2d 805, 808 (Tex. App.-Houston [14th Dist.] 1998, no pet.). He did not do so.

On May 15, 2017, this court ordered appellant to file, on or before May 25, 2017, a proper motion to extend time to file the notice of appeal or the appeal would be dismissed. No proper motion to extend time to file has been filed. Accordingly, we order the appeal dismissed for lack of jurisdiction. See Tex. R. App. P. 42.3(a); Taborda v. Tamirisa, No. 14-16-00545-CV, 2016 WL 6465582, at *1 (Tex. App.—Houston [14th Dist.] Nov. 1, 2016, no pet.) (mem. op.).

/s/ Kem Thompson Frost

Chief Justice Panel consists of Chief Justice Frost and Justices Donovan and Wise.


Summaries of

In re Interest of C.D.P.

State of Texas in the Fourteenth Court of Appeals
Jun 6, 2017
NO. 14-16-00334-CV (Tex. App. Jun. 6, 2017)

dismissing restricted appeal for want of jurisdiction because appellant timely filed a motion for new trial and appellant's notice of appeal was not timely as a notice of regular appeal

Summary of this case from Daulton Point, LLC v. Schoggins
Case details for

In re Interest of C.D.P.

Case Details

Full title:IN THE INTEREST OF C.D.P., A MINOR CHILD

Court:State of Texas in the Fourteenth Court of Appeals

Date published: Jun 6, 2017

Citations

NO. 14-16-00334-CV (Tex. App. Jun. 6, 2017)

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Daulton Point, LLC v. Schoggins

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