Rita Lemons v. Don TrustClaire, Don Blake, Carlos Pena, Noe Gomez, Latecia Gomez, Berthel Martinez, and Estate of Leroy Lemons

• Court: Court of Appeals of Texas
• Decided: September 27, 2016
• Docket: 01-15-00899-CV
• Status: Published

Opinion

Opinion issued September 27, 2016

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-15-00899-CV ——————————— RITA LEMONS, Appellant V. DON TRUSTCLAIRE, DON BLAKE, CARLOS PENA, NOE GOMEZ, LATECIA GOMEZ, BERTHEL MARTINEZ, AND ESTATE OF LEROY LEMONS, Appellees

On Appeal from the 240th District Court Fort Bend County, Texas Trial Court Case No. 14-DCV-213790

MEMORANDUM OPINION

Appellant, Rita Lemons, attempts to appeal the trial court’s “Partial Order

Dismissing Respondent Parties at Trial” signed on June 5, 2015. We dismiss the appeal for want of jurisdiction because, even if the underlying order is appealable,

the notice of appeal of the order was untimely.

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 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 order from which appellant appeals on June

15, 2015 and no motion was filed that would extend the notice of appeal deadline.

Therefore, appellant’s notice of appeal was due by July 15, 2015. See TEX. R. APP.

P. 26.1. Appellant’s notice of appeal was not filed until September 11, 2015, fifty-

2 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.

On August 9, 2016, the Clerk of this Court notified the appellant that this

appeal was subject to dismissal for want of jurisdiction unless she demonstrated this

Court had jurisdiction over this appeal. Appellant failed to file an adequate response.

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.

PER CURIAM

Panel consists of Justices Bland, Massengale, and Lloyd.