Zeb Ryan and Sharon Marie Cummins v. Joe Derek Carr, Joe Harrison Carr, Donna Leslia Carr and Carmen Marie Cadena

• Court: Court of Appeals of Texas
• Decided: August 27, 2013
• Docket: 03-13-00471-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-13-00471-CV

Zeb Ryan Cummins and Sharon Marie Cummins, Appellants

v.

Joe Harrison Carr, Donna Leslia Carr, Joe Derek Carr, and Carmen Marie Cadena, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT NO. D-1-FM-11-001631, HONORABLE GISELA D. TRIANA, JUDGE PRESIDING

MEMORANDUM OPINION

This appeal arises from a final order in a suit affecting the parent child relationship

signed on March 8, 2013. On July 11, 2013, appellants Zeb Ryan Cummins and Sharon Marie

Cummins filed their notice of appeal and shortly afterward, a motion to extend time to file notice of

appeal. Appellees Joe Harrison Carr and Donna Leslia Carr filed a response in opposition to the

motion to extend time and a motion to dismiss the appeal.

The Cumminses argue that their appeal was timely because: (1) they requested

findings of fact and conclusions of law on March 27, 2013, and (2) the trial court “retained plenary

power to modify its final judgment” by holding a review hearing on May 23, 2013 to revisit the

possession schedule and retaining the guardian ad litem for a report, which was not provided until

July 22, 2013. Alternatively, the Cumminses request an extension of time to file their notice of

appeal to July 11, 2013. As the Carrs point out, neither holding a review hearing, retaining the guardian

ad litem, nor any wording of the trial court’s order affected its finality or explicitly extended the

court’s plenary power beyond the thirty-day period after the date the order was signed. See Tex. R.

Civ. P. 329b(d). The Cumminses’ request for findings of fact and conclusions of law extended their

deadline for filing a notice of appeal by 90 days to June 6, 2013. See Tex. R. App. P. 26.1(a)(4).

That deadline might have been extended to June 21, 2013, if appellants had filed either a notice of

appeal with the trial court, or a motion for extension of time with this Court, within 15 days after the

deadline for filing the notice of appeal. See Tex. R. App. P. 26.3; Verburgt v. Dorner, 959 S.W.2d

615, 617-18 (Tex. 1997).

However, the Cumminses’ July 11, 2013 notice of appeal is untimely, and we

therefore lack jurisdiction over this appeal. See Tex. R. App. P. 25.1(b) (providing that filing of

notice of appeal invokes appellate court’s jurisdiction). Accordingly, we deny the Cumminses’

motion to extend time to file notice of appeal, grant the Carrs’ motion to dismiss, and dismiss this

appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a).

Jeff Rose, Justice

Before Justices Puryear, Rose, and Goodwin

Dismissed for Want of Jurisdiction

Filed: August 27, 2013