Gregory Ray Wheeler v. Jalane Suzette Theis

• Court: Court of Appeals of Texas
• Decided: May 20, 2014
• Docket: 01-14-00029-CV
• Status: Published

Opinion

Opinion issued May 20, 2014.

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-14-00029-CV ——————————— GREGORY RAY WHEELER, Appellant V. JALANE SUZETTE THEIS, Appellee

On Appeal from the 308th District Court Harris County, Texas Trial Court Case No. 2013-18731

MEMORANDUM OPINION

Appellant, Gregory Ray Wheeler, attempts to appeal from a final decree of

divorce signed on September 24, 2013. Wheeler has filed a “Motion to Extend the

Appellate Deadline.” Appellee, Jalane Suzette Theis, has filed a motion to dismiss the appeal for want of jurisdiction. We deny Wheeler’s motion, grant Theis’s

motion, and dismiss the appeal.

Generally, a notice of appeal is due within thirty days after the judgment is

signed. See TEX. R. APP. P. 26.1. The deadline to file a notice of appeal is extended

to ninety days after the date the judgment is signed if any party timely files a

motion for new trial, motion to modify the judgment, motion to reinstate, or, under

certain circumstances, a request for findings of fact and conclusions of law. See

TEX. R. APP. P. 26.1(a); see also TEX. R. CIV. P. 297, 329b(a), (g). The time to file

a notice of appeal also may be extended if, within fifteen days after the deadline to

file the notice of appeal, a party properly files a motion for extension. See TEX. R.

APP. P. 10.5(b), 26.3; see also Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex.

1997) (holding that motion for extension of time is implied when appellant, acting

in good faith, files notice of appeal beyond Rule 26.1 deadline but within Rule 26.3

fifteen-day extension period).

Here, the trial court signed the final judgment on September 24, 2013.

Wheeler timely filed a motion for new trial and a request for findings of fact and

conclusions of law. Accordingly, his notice of appeal was due on December 23,

2013, or by January 7, 2014, with a fifteen-day extension. See TEX. R. APP. P.

26.1(a), 26.3; Verburgt, 959 S.W.2d at 617.

2 Wheeler untimely filed a “Motion to Extend Appellate Deadline,” requesting

an extension of time to file his notice of appeal on January 9, 2014. Because

Wheeler’s motion to extend the deadline to file his notice of appeal was untimely

filed, the motion cannot extend the deadline. See TEX. R. APP. P. 26.3. Wheeler’s

notice of appeal, electronically filed on January 8, 2014, was untimely. Without a

timely filed notice of appeal, this Court lacks jurisdiction over the appeal. See TEX.

R. APP. P. 25.1.

Accordingly, we deny Wheeler’s motion, grant Theis’s motion, and dismiss

the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a), 43.2(f). We dismiss

any other pending motions as moot.

PER CURIAM

Panel consists of Justices Keyes, Sharp, and Huddle.