Paula E. Fletcher and Perry Fletcher v. David H. Nielson, M.D. and David N. Nielson, M.D., P.A.

• Court: Court of Appeals of Texas
• Decided: February 16, 2005
• Docket: 04-05-00008-CV
• Status: Published

Opinion

MEMORANDUM OPINION

No. 04-05-00008-CV

Paula E. FLETCHER and Perry Fletcher,

Appellants

v.

David H. NIELSON, M.D., and David H. Nielson, M.D., P.A.,

Appellees

From the 131st Judicial District Court, Bexar County, Texas

Trial Court No. 2002-CI-14966

Honorable David Peeples, Judge Presiding

PER CURIAM

Sitting:            Alma L. López, Chief Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed:   February 16, 2005

DISMISSED FOR LACK OF JURISDICTION

            The trial court signed a judgment on September 20, 2004. Appellants timely filed a motion for new trial on October 18, 2004. Therefore, the notice of appeal was due to be filed on December 20, 2004. See Tex. R. App. P. 26.1(a). A motion for extension of time to file the notice of appeal was due on January 4, 2005. See Tex. R. App. P. 26.3. Appellants filed a motion for extension of time and a notice of appeal on January 5, 2005. Because it appeared this court does not have jurisdiction over this appeal, on January 20, 2005, we ordered appellants to show cause in writing why this appeal should not be dismissed for lack of jurisdiction. On January 18, 2005, appellees filed a Motion to Dismiss the Appeal for Want of Jurisdiction.

            On January 29, 2005, appellants filed an Opposition to Appellees’ Motion to Dismiss the Appeal for Want of Jurisdiction and Response to This Court’s Show Cause Order, in which appellants stated that the motion for extension of time and notice of appeal were not timely filed because the due date was incorrectly calendered by counsel.

            Although we acknowledge counsel’s bona fide attempt to timely perfect an appeal, “once the period for granting a motion for extension of time under Rule [26.3] has passed, a party can no longer invoke the appellate court’s jurisdiction.” See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (construing the predecessor to Rule 26). Because the period for granting a motion for extension of time had passed before appellants filed their motion for extension of time, appellants have not invoked this court’s jurisdiction. Id. Therefore, appellants’ Motion for Extension of Time to File Notice of Appeal is DENIED. Appellees’ motion to dismiss is GRANTED, and this appeal is dismissed for lack of jurisdiction. See Tex. R. App. P. 42.3(a).