Opinion
No. 04-03-00347-CV.
Delivered and Filed: February 11, 2004.
Appeal from the 288th Judicial District Court, Bexar County, Texas, Trial Court No. 1998-CI-10218, Honorable Michael P. Peden, Judge Presiding.
Dismissed for Lack of Jurisdiction.
Sitting: Alma L. LÓPEZ, Chief Justice, Sandee Bryan MARION, Justice and Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
The trial court dismissed the underlying lawsuit for want of prosecution on February 26, 2003. A motion to reinstate was due thirty days later, on March 28, 2003. Tex. R. Civ. P. 165a(3). Appellant filed her motion to reinstate on April 1, 2003. Because appellant did not timely file a motion to reinstate, her notice of appeal was due to be filed on March 28, 2003. See Tex.R.App.P. 26.1(a). A motion for extension of time to file the notice of appeal was due on April 14, 2003. See Tex.R.App.P. 26.3. Appellant did not file a motion for extension of time and she filed her notice of appeal on May 7, 2003. Therefore, on December 12, 2003, we ordered appellant to show cause in writing why this appeal should not be dismissed for lack of jurisdiction.
On January 27, 2004, appellant filed a response to our show cause order in which she contends the trial court's plenary jurisdiction extended for 105 days from the date it signed the judgment; therefore, her May 7th notice of appeal was timely. See L.M. Healthcare Inc. v. Childs, 929 S.W.2d 442, 444 (Tex. 1996) (on rehearing).
However, "[o]nly timely filed motions extend the trial court's plenary jurisdiction." Id.; see Tex. R. Civ. P. 329b(e), (g). A party must file a motion to modify judgment and motion for new trial within thirty days from the date the trial court signed the judgment. L.M. Healthcare Inc., 929 S.W.2d at 444; see Tex. R. Civ. P. 329b(b), (g). Appellant did not timely file her motion to reinstate. This motion was due on Friday, March 28, 2003, and it was not filed until Tuesday, April 1, 2003. The certificate of service attached to the motion indicates it was mailed to opposing counsel on April 1, 2003. The clerk of this court has confirmed with the district court clerk that no post-marked envelope exists in the file; therefore, there is no proof that appellant timely filed her motion by mail. See Tex.R.App.P. 9.2(b)(1). Because appellant's motion to reinstate was not timely, the trial court's plenary jurisdiction was not extended, and appellant's notice of appeal was due on March 28, 2003.
Appellant did not timely file her notice of appeal and she did not file a motion for extension of time in which to file her notice of appeal. "[O]nce the period for granting a motion for extension of time under Rule [26.3] has passed, a party can no longer invoke the appellate court's jurisdiction." See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). Therefore, this appeal is dismissed for lack of jurisdiction. See Tex.R.App.P. 42.3(a).