Victor Fonseca and Rig Cleaners, LLC v. Peggy Sue Bishop, as of Estate of Charles T. Blish, in the Right of Rig Cleaners, LLC., and the Estate of Charles T. Blish, Individually

• Court: Court of Appeals of Texas
• Decided: October 16, 2014
• Docket: 02-14-00309-CV
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-14-00309-CV

VICTOR FONSECA AND RIG APPELLANTS CLEANERS, LLC

V.

PEGGY SUE BISHOP, AS APPELLEE EXECUTRIX OF ESTATE OF CHARLES T. BLISH, IN THE RIGHT OF RIG CLEANERS, LLC, AND THE ESTATE OF CHARLES T. BLISH, INDIVIDUALLY

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FROM PROBATE COURT NO. 2 OF TARRANT COUNTY TRIAL COURT NO. 2013-PR01571-2-A

MEMORANDUM OPINION 1

Appellants Victor Fonseca and Rig Cleaners, LLC attempt to pursue a

restricted appeal from the trial court’s default judgment in favor of Appellee

1 See Tex. R. App. P. 47.4. Peggy Sue Bishop, Executrix of the Estate of Charles T. Blish, in the Right of Rig

Cleaners, LLC, and the Estate of Charles T. Blish, Individually. The trial court’s

default judgment was signed March 7, 2014. The notice of restricted appeal was

therefore due within six months, 2 that is, by September 8, 2014, or, if

accompanied by a motion for extension of time, within six months and fifteen

days, 3 that is, by September 23, 2014. Appellants did not file their notice of

appeal until September 25, 2014, outside the deadline.

Accordingly, on September 26, 2014, we notified Appellants of our concern

that we might not have jurisdiction over the appeal and informed them that unless

they or any party desiring to continue the appeal filed with this court a response

showing grounds for continuing the appeal, this appeal would be dismissed for

want of jurisdiction. 4 In response, Appellants filed a late motion for extension of

time on September 30, 2014. Appellee filed an objection and response to the

motion, seeking dismissal of the appeal.

“[O]nce the period for granting a motion for extension of time . . . has

passed, a party can no longer invoke the appellate court’s jurisdiction.” 5 The

2 See Tex. R. App. P. 4.1(a), 26.1(c), 30. 3 See Tex. R. App. 4.1(a), 26.3, 30; Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997); King v. State, No. 05–03–00936–CV, 2003 WL 21710523, at *1 (Tex. App.—Dallas July 24, 2003, no pet.) (mem. op.). 4 See Tex. R. App. P. 42.3(a), 44.3. 5 Verburgt, 959 S.W.2d at 617.

2 times for filing a notice of appeal are jurisdictional in this court, and absent a

timely filed notice of appeal or an extension request, we must dismiss the

appeal. 6 Because neither appellants’ motion for extension of time nor their notice

of appeal was timely filed, we dismiss the motion, and we dismiss this appeal for

want of jurisdiction. 7

PER CURIAM

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DELIVERED: October 16, 2014

6 See id. at 617; see also Tex. R. App. P. 25.1(b), 26.3. 7 See Tex. R. App. P. 42.3(a), 44.3.