Benson White v. Claude Randall Bagley and Rita Bagley

• Court: Court of Appeals of Texas
• Decided: August 24, 2005
• Docket: 06-05-00104-CV
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-05-00104-CV

BENSON WHITE, ET AL., Appellants

V.

CLAUDE RANDALL BAGLEY AND RITA BAGLEY, Appellees

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On Appeal from the 123rd Judicial District Court

Panola County, Texas

Trial Court No. 2003-A-079

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

            Benson White, Lenson White, Edgar White, T. C. Gray, Jr., Virgina Blade, Raymond Strong, Jr., Ezra Strong, Jimmy Ruth Strong, Maxine Stephenson, Nobia Finner, Vicki Anderson Byrd, Rita Joyce Parker, Keith Barnes, Bridgette Copprue, Herbert Earl Robinson, Johnny Roy Robinson, Reginald Gray, and Thomas Johnson (collectively White) attempt to appeal the trial court's judgment in this case. White has filed a notice of appeal and a motion for extension of time to file a notice of appeal. Claude Randall Bagley and Rita Bagley, appellees, have filed a motion to dismiss the appeal. The issue before us is whether White timely filed the motion for extension of time and a notice of appeal. We conclude both the motion for extension and notice of appeal are untimely and dismiss the attempted appeal for want of jurisdiction.

            On April 29, 2005, the trial court signed the judgment being appealed. White then timely filed a motion for new trial, which the trial court denied. However, White did not file a notice of appeal until August 15, 2005. On August 16, 2005, White mailed to this Court a motion for extension of time to file a notice of appeal.

            A timely notice of appeal is necessary to invoke this Court's jurisdiction. See Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997). Under Rule 26.1 of the Texas Rules of Appellate Procedure, a party's notice of appeal is timely if filed within ninety days after the day the trial court's judgment is signed, when the party timely filed a motion for new trial. Tex. R. App. P. 26.1(a). The last date on which White could timely file a notice of appeal was July 28, 2005—ninety days after the day the trial court signed its judgment. See id. However, White did not file a notice of appeal until August 15, 2005.

            Rule 26.3 of the Texas Rules of Appellate Procedure provides that we may extend the time to file the notice of appeal "if, within 15 days after the deadline for filing the notice of appeal," the party files a notice of appeal in the trial court and a motion for extension with this Court. Tex. R. App. P. 26.3. "[O]nce the period for granting a motion for extension of time under Rule 41(a)(2) [now Rule 26.3 of the Texas Rules of Appellate Procedure] has passed, a party can no longer invoke the appellate court's jurisdiction." Verburgt, 959 S.W.2d at 617. The last day White could have filed for an extension was Friday, August 12, 2005. The notice of appeal was not filed until the following Monday, August 15, 2005. Because White failed to file a notice of appeal and a motion for extension within fifteen days of the last day for timely filing a notice of appeal, we lack jurisdiction to grant an extension.

            White has failed to perfect an appeal. Accordingly, we dismiss the appeal for want of jurisdiction.

                                                                        Jack Carter

                                                                        Justice

Date Submitted:          August 23, 2005

Date Decided:             August 24, 2005