Jim Hill v. Mercedes-Benz of North America, Inc. and Ed Hicks Imports

• Court: Court of Appeals of Texas
• Decided: August 14, 2003
• Docket: 13-03-00431-CV
• Status: Published

Opinion

                           NUMBER 13-03-00431-CV

                         COURT OF APPEALS

               THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI - EDINBURG                                               ____________________________________________________________                

JIM HILL,                                                               Appellant,

                                           v.

MERCEDES-BENZ OF NORTH AMERICA INC.

AND ED HICKS IMPORTS,                                                Appellees.

___________________________________________________________ _                                     

On appeal from the 214th District Court of Nueces County, Texas.

____________________________________________________________                                                                                             

                     MEMORANDUM OPINION

                   Before Justices Hinojosa, Yañez and Garza

                                Opinion Per Curiam

On July 14, 2003, appellant, Jim Hill, filed a motion to extend the time for filing his notice of appeal in this case.  On July 21, 2003, appellees, Mercedes-Benz of North America, Inc. and Ed Hicks Imports, filed a motion to dismiss this case for want of jurisdiction.  In the motion, appellees contend this Court is without jurisdiction to entertain this appeal because appellant=s notice of appeal and his motion for extension of time were untimely filed.

Rule 26.1 of the Texas Rules of Appellate Procedure regarding time delays for perfecting an appeal provides, in relevant part, as follows:

The notice of appeal must be filed within 30 days after the judgment is signed, except as follows:      

(a)               the notice of appeal must be filed within 90 days after the judgment is signed if any party timely files:

(1)              a motion for new trial;

(2)              a motion to modify the judgment;

(3)              a motion to reinstate under Texas Rule of Civil Procedure 165a; or

(4)              a request for findings of fact and conclusions of law if findings and conclusions either are required by the Rules of Civil Procedure or, if not required, could properly be considered by the appellate court...@

Tex. R. App. P. 26.1.  Rule 26.3 provides:

The appellate court 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:

(a)               files in the trial court the notice of appeal; and

(b)               files in the appellate court a motion complying with Rule 10.5(b).

Tex. R. App. P. 26.3

On March 31, 2003, the trial court signed an order dismissing appellant=s case for want of prosecution.  On April 30, 2003, appellant filed a motion to reinstate/motion for new trial, but failed to verify the motion as required by rule 165a(3) of the Texas Rules of Civil Procedure.  An unverified motion is a nullity and does not extend the trial court=s plenary jurisdiction or the deadlines for perfecting an appeal.   See McConnell v. May, 800 S.W.2d 194, 194 (Tex. 1990) (orig. proceeding); Butts v. Capitol City Nursing Home, Inc., 705 S.W.2d 696, 697 (Tex. 1986); In re Garcia, 94 S.W.3d 832, 833-34 (Tex. App.BCorpus Christi 2002, no pet.).  On May 29, 2003, appellant filed an amended, verified motion.  However, an amended motion also must be filed within thirty days of the date the dismissal order was signed.  Garcia, 94 S.W.2d at 834.  The amended motion does not relate back to the original, unverified motion to extend the trial court=s jurisdiction.  See id.    

Appellant did not file his motion to extend the time for filing his notice of appeal until July 14, 2003.  Because his motion for reinstatement was unverified and did not extend the deadlines for perfecting the appeal, appellant=s request is now untimely.  See Tex. R. App. P. 26.1, 26.3.

Accordingly, appellant=s motion to extend the time for filing his notice of appeal is denied and appellees= motion to dismiss this case for want of jurisdiction is granted.

This appeal is dismissed for want of jurisdiction.

      PER CURIAM

Opinion delivered and filed this the

14th day of August, 2003.