Joseph Andrew Beach v. Christine Nicole Beach

Opinion

Opinion issued December 3, 2019

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-18-01037-CV ——————————— JOSEPH ANDREW BEACH, Appellant V. CHRISTINE NICOLE BEACH, Appellee

On Appeal from the 328th District Court Fort Bend County, Texas Trial Court Case No. 18-DCV-250022

MEMORANDUM OPINION

Appellant, Joseph Andrew Beach, filed a notice of appeal on November 9,

2019 attempting to appeal from a final divorce decree signed by the trial court on

July 24, 2018. We dismiss the appeal for want of jurisdiction. Generally, a notice of appeal is due within thirty days after the final 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, within thirty days after the

judgment is signed, 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); TEX. R. CIV. P.

329b(a), (g). The time to file a notice of appeal may also 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. 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 extension

period provided by Rule 26.3. See TEX .R. APP. P. 26.1, 26.3; Verburgt v. Dorner,

959 S.W.2d 615, 617–18 (Tex. 1997).

Here, the trial court signed the judgment from which appellant appeals on July

24, 2018 and no motion for new trial was filed. Therefore, appellant’s notice of

appeal was due by August 23, 2018. See TEX. R. APP. P. 26.1. On November 9, 2018,

appellant filed an untitled “motion” requesting an appeal of the judgment. Although

we construe this motion as a notice of appeal, it was untimely filed seventy-eight

days after the deadline. Without a timely filed notice of appeal, this Court lacks

jurisdiction over the appeal. See TEX. R. APP. P. 25.1.

2 On August 7, 2019, the Clerk of this Court notified appellant that this appeal

was subject to dismissal for want of jurisdiction unless he demonstrated this Court

had jurisdiction over this appeal. Appellant filed a response asserting that his appeal

is timely due to a letter appellant sent to the trial court judge on August 1, 2018. The

clerk’s record includes appellant’s letter and a response from the court coordinator

informing appellant that (1) the court received the letter but the judge could not read

an ex parte communication and (2) the letter was placed in the court’s file.

Appellant’s 4-page handwritten letter discusses his personal history and makes

various claims and complaints about the divorce. In his response, appellant points to

a sentence located in the middle of the last paragraph on the third page of the letter

in which appellant asks if the judge could “step in and reopen the case, intercede on

some level, or . . . help [appellant] appeal whatever happened” in the case. This

statement, which was buried in a letter bearing no apparent relation to providing a

notice of appeal, was insufficient to be considered a notice of appeal. Cf. Baez v.

State, 235 S.W.3d 839, 840-41 (Tex. App.—Texarkana 2007, pet.

ref’d) (concluding that, even under relaxed standard of construction, statement

extracted from trial counsel’s motion to withdraw did not satisfy notice of appeal

requirement).

Accordingly, we dismiss the appeal for want of jurisdiction. See TEX. R. APP.

P. 42.3(a), 43.2(f). We dismiss any pending motions as moot.

Panel consists of Chief Justice Radack and Justices Landau and Hightower.