Elaine Wilson v. Gerardo Perez Martinez, Jr., Elizabeth Nicole Martinez, Jerardo Perez Martinez, and Linda Sutton Martinez

• Court: Court of Appeals of Texas
• Decided: March 19, 2009
• Docket: 14-09-00091-CV
• Status: Published

Opinion

Dismissed and Memorandum Opinion filed March 19, 2009

Dismissed and Memorandum Opinion filed March 19, 2009.

In The

Fourteenth Court of Appeals

____________

NO. 14-09-00091-CV

ELAINE WILSON, Appellant

V.

GERARDO PEREZ MARTINEZ, JR., ELIZABETH NICOLE MARTINEZ, JERARDO PEREZ MARTINEZ and LINDA SUTTON MARTINEZ, Appellees

On Appeal from the 334th District Court

Harris County, Texas

Trial Court Cause No. 2007-40765

M E M O R A N D U M   O P I N I O N

This is an attempted appeal from a final judgment signed September 24, 2008.  Appellant filed a timely request for findings of fact and conclusions of law and a timely motion to modify the judgment.

When an 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).  Accordingly, appellant=s notice of appeal due within ninety days after judgment, on or before December 23, 2008.  The notice was not filed until January 14, 2009.

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 (Tex. 1997) (construing the predecessor to Rule 26); see also Tex. R. App. P. 26.3 (permitting an extension of time if the notice of appeal is filed within 15 days of its due date). In this case, the fifteenth day after the due date of the notice of appeal was January 7, 2009. Appellant=s notice of appeal was not filed until January 14, 2009; thus it was not filed within the fifteen-day period provided by rule 26.3.^[1] 

On February 18, 2009, 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 Chief Justice Hedges and Justices Anderson and Seymore.

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^[1]   The record reflects that the notice of appeal was not file-stamped in the mail processing department of the Harris County District Clerk=s office, thus indicating it was hand delivered.  In addition, the certificate of service on the notice is dated January 14, 2009.  Therefore, appellant may not avail herself of the mailbox rule to extend the deadline.  See Tex. R. App. P. 9.2(b).