Larry Coleman Hicks v. Dawn Renae Foreman

• Court: Court of Appeals of Texas
• Decided: November 13, 2018
• Docket: 01-18-00817-CV
• Status: Published

Opinion

Opinion issued November 13, 2018

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-18-00817-CV ——————————— LARRY COLEMAN HICKS, Appellant V. DAWN RENAE FOREMAN, Appellee

On Appeal from the 300th District Court Brazoria County, Texas Trial Court Case No. 77123-F

MEMORANDUM OPINION Appellant, Larry Coleman Hicks, attempts to appeal from the trial court’s final

divorce decree, signed on November 10, 2015.

We dismiss the appeal for lack of jurisdiction. 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, 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 id. 26.1(a); TEX. R. CIV. P. 296, 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. 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 id. 26.1, 26.3; Verburgt v. Dorner, 959 S.W.2d 615, 617

(Tex. 1997).

Here, the trial court signed the final divorce decree on November 10, 2015.

Because appellant did not file a motion for new trial, motion to modify, or request

for findings of fact and conclusions of law, a notice of appeal was due by December

10, 2015, or by December 28, 2015, with a fifteen-day extension. See TEX. R. APP.

P. 26.1(a), 26.3. Appellant filed his notice of appeal more than two and one-half

years later on September 12, 2018.

2 The Clerk of this Court notified appellant that the appeal was subject to

dismissal for lack of jurisdiction unless he filed a response showing how this Court

has jurisdiction over his appeal. Appellant did not adequately respond and did not

show that we have jurisdiction over the appeal. Appellant’s notice of appeal, filed

on September 12, 2018, was untimely. Without a timely filed notice of appeal, this

Court lacks jurisdiction over the appeal. See TEX. R. APP. P. 25.1; Brown Mech.

Servs., Inc. v. Mountbatten Sur. Co., 377 S.W.3d 40, 44 (Tex. App.—Houston [1st

Dist.] 2012, no pet.).

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

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

PER CURIAM

Panel consists of Justices Jennings, Higley, and Massengale.