Thomas Wayne Florence v. Wanette Marie Florence

Opinion

Opinion issued September 17, 2013

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-13-00570-CV ——————————— THOMAS WAYNE FLORENCE, Appellant V. WANETTE MARIE FLORENCE, Appellee

On Appeal from the County Court at Law No. 3 Galveston County, Texas Trial Court Case No. 12-FD-2877

MEMORANDUM OPINION

Appellant, Thomas Wayne Florence, attempts to appeal from the trial court’s

judgment signed January 16, 2013. We dismiss the appeal.

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 90 days after the date the judgment is signed if, within 30 days after

the judgment is signed, any party 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. Id.; TEX. R. CIV. P. 329b(a), (g). The time

to file a notice of appeal may also be extended if, within 15 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 15-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

(Tex. 1997).

Here, the trial court signed the final judgment on January 16, 2013.

Florence timely filed a motion for new trial on February 1, 2013. See TEX. R. CIV.

P. 329b. Therefore, Florence’s notice of appeal was due by April 16, 2013. See

TEX. R. APP. P. 26.1.

Florence untimely filed his notice of appeal on June 3, 2013.1 Without a

timely filed notice of appeal, this Court lacks jurisdiction over the appeal. See TEX.

R. APP. P. 25.1.

1 Florence dated his notice of appeal on May 26, 2013. Therefore, even if we assume Florence filed his notice on that date, his notice was filed after the 15-day extension period and was untimely. See TEX. R. APP. P. 26.1, 26.3; see also TEX. 2 On August 5, 2013, we notified Florence that his appeal was subject to

dismissal for want of jurisdiction unless, by August 15, 2013, he filed a response

showing grounds for continuing the appeal. See TEX. R. APP. P. 42.3(a). Florence

filed a response, but it does not show grounds for continuing the appeal.

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

APP. P. 43.2(f). We dismiss any pending motions as moot.

PER CURIAM Panel consists of Justices Jennings, Sharp, and Brown.

R. APP. P. 9.2(b); Campbell v. State, 320 S.W.3d 338, 342 (Tex. Crim. App. 2010). 3