Jonathan Scott Micklethwait v. Marina Karitznova Micklethwait

• Court: Court of Appeals of Texas
• Decided: December 20, 2006
• Docket: 03-06-00500-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-06-00500-CV

Jonathan Scott Micklethwait, Appellant

v.

Marina Karitznova Micklethwait, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT

NO. D-1-FM-05-006484, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING

O R D E R

Before the Court are appellee's motion to extend appellate deadlines and appellant's motion to dismiss appellee's cross-appeal for lack of jurisdiction based on appellee's untimely notice of appeal. For the following reasons, we deny appellee's motion, and we dismiss appellee's cross-appeal for want of jurisdiction.

The trial court signed the final decree of divorce on July 20, 2006. Both parties agree that, in light of appellee's timely filed motion for new trial, the deadline for appellee's notice of appeal was October 18, 2006--90 days after the judgment was signed. See Finley v. J.C. Pace Ltd., 4 S.W.3d 319, 320 (Tex. App.--Houston [1st Dist.] 1999, order). Appellee did not file her notice of cross-appeal until November 3, 2006 because counsel had the mistaken belief that the notice of appeal was not due until 30 days after the trial court actually ruled on the motion for new trial, which would have been November 19, 2006.

Although we may construe a notice of appeal filed within 15 days after the deadline to include an implied motion for extension of time, see Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997), and rule 26.3 of the Texas Rules of Appellate Procedure allows us to extend the time for filing a notice of appeal if a party files a motion to extend within 15 days after the original deadline, neither of these exceptions applies in this situation where appellee filed her notice of appeal on November 3, 2006--16 days after it was originally due on October 18, 2006. Because the notice was filed more than 15 days after the original deadline, we have no jurisdiction to consider appellee's motion to extend appellate deadlines, and we must dismiss appellee's cross-appeal for want of jurisdiction. See Verburgt, 959 S.W.2d at 617 (Tex. 1997) (holding that once the time for filing a motion for extension of time under former Tex. R. App. P. 41(a)(2), now rule 26.3, has passed, a party can no longer invoke the appellate court's jurisdiction); In re Estate of Padilla, 103 S.W.3d 563, 567 (Tex. App.--San Antonio 2003, no pet.).

Accordingly, we deny appellee's motion to extend appellate deadlines, and we dismiss appellee's cross-appeal for want of jurisdiction.

It is so ordered December 20, 2006.

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Jan P. Patterson, Justice

Before Justices Patterson, Pemberton and Waldrop

Filed: December 20, 2006