Don McCaffety v. Joyce McCaffety

• Court: Court of Appeals of Texas
• Decided: January 13, 2015
• Docket: 14-14-00756-CV
• Status: Published

Opinion

Motion Denied; Appeal Dismissed and Memorandum Opinion filed January 13, 2015.

In The

Fourteenth Court of Appeals

NO. 14-14-00756-CV

DON MCCAFFETY, Appellant V. JOYCE MCCAFFETY, ET AL, Appellee

On Appeal from the 61st District Court Harris County, Texas Trial Court Cause No. 2011-29862

MEMORANDUM OPINION

This is an attempted appeal from a judgment signed June 17, 2014. Appellant filed an untimely motion to modify the judgment on July 20, 2014.1 The notice of appeal was filed September 15, 2014. The notice of appeal must be filed within thirty days after the judgment is signed when appellant has not filed a timely

1 The motion is dated July 18, 2014, but that too is untimely. motion for new trial, motion to modify the judgment, motion to reinstate, or request for findings of fact and conclusion of law. See Tex. R. App. P. 26.1.

On October 8, 2014, appellant filed a motion to extend time to file the notice of appeal. The motion fails to demonstrate the appellate timetable was extended by the timely filing of a motion for new trial, motion to modify the judgment, motion to reinstate, or request for findings of fact and conclusion of law. Accordingly, the notice of appeal was due July 17, 2014.

Appellant=s notice of appeal was not filed timely. A motion for extension of time is necessarily implied when an appellant, acting in good faith, files a notice of appeal beyond the time allowed by Rule 26.1, but within the fifteen-day grace period provided by Rule 26.3 for filing a motion for extension of time. See Verburgt v. Dorner, 959 S.W.2d 615, 617-18 (1997) (construing the predecessor to Rule 26). Appellant=s notice of appeal was not filed within the fifteen-day period provided by Rule 26.3. Appellant’s motion for extension of time to file the notice of appeal is therefore denied.

On December 4, 2014, 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 no response.

Accordingly, the appeal is ordered dismissed.

PER CURIAM

Panel consists of Justices Jamison, Busby and Brown.