Xiomara Pena v. Maria C. Pena and Lourdes Pena

Opinion

Opinion issued February 24, 2014

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-14-00853-CV ——————————— XIOMARA PENA, Appellant V. MARIA C. PENA AND LOURDES PENA, Appellees

On Appeal from the 165th District Court Harris County, Texas Trial Court Case No. 2012-73874

MEMORANDUM OPINION

Appellant, Xiomara Pena, seeks to appeal an order of the trial court denying

a motion for new trial following the granting of a motion for summary judgment in

favor of appellees. 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 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.; 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, 617–18

(Tex. 1997).

Here, the trial court signed the final judgment on May 14, 2014. A timely

motion for new trial was filed on June 13, 2014. See TEX. R. CIV. P. 329b(a) (“A

motion for new trial, if filed, shall be filed prior to or within thirty days after the

judgment or other order complained of is signed.”). Because the motion for new

trial was timely, appellant’s deadline to file a notice of appeal from the summary

judgment was extended to August 14, 2014, or by August 29, 2014 with a 15-day

extension. See TEX. R. APP. P. 26.1(a), 26.3. The order denying the motion for

2 new trial was signed September 23, 2014, but the denial of a motion for new trial

did not extend the due date for a notice of appeal from the summary judgment. See

In the Interest of K.A.F., 160 S.W.3d 923, 927 (Tex. 2005); In re M.A.H., 104

S.W.3d 568, 569 (Tex. App.—Waco 2002, no pet.). Appellant’s notice of appeal

was not filed until October 20, 2014. Without a timely filed notice of appeal, this

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

On January 22, 2014, we notified appellant this appeal was subject to

dismissal for want of jurisdiction unless a response was filed within ten days

showing grounds for continuing the appeal. See TEX. R. APP. P. 42.3(a). No

response was filed.

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

APP. P. 42.3(a), (c); 43.2(f). We dismiss any pending motions as moot.

Panel consists of Justices Jennings, Higley, and Huddle.