GARDNER v. GARDNER

No. 01-17-00525-CV.

LYNETTE FAYE GARDNER, Appellant, v. JEFFREY DEAN GARDNER, II, Appellee.

Court of Appeals of Texas, First District, Houston.


Attorney(s) appearing for the Case

Michelle Weiser , for Jeffrey D. Gardner, Appellee.

Lynette Faye Gardner, for Appellant, Pro se.

Panel consists of Chief Justice Radack and Justices Jennings and Lloyd.


MEMORANDUM OPINION

PER CURIAM.

Appellant, Lynette Faye Gardner, filed a notice of appeal on June 22, 2017 attempting to appeal from a final decree of divorce signed by the trial court on April 25, 2017. Appellee has filed a motion to dismiss the appeal for want of jurisdiction because appellant's notice of appeal was untimely. We grant the motion and dismiss the appeal.

Generally, a notice of appeal is due within thirty days after the final 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 judgment from which appellant appeals on April 25, 2017 and no motion for new trial was filed. Therefore, appellant's notice of appeal was due by May 25, 2017. See TEX. R. APP. P. 26.1. Appellant's June 22, 2017 notice of appeal was filed twenty-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 July 18, 2017, appellee filed a motion to dismiss this appeal for want of jurisdiction due to the untimely notice of appeal. Appellant failed to respond.

Accordingly, we grant appellee's motion to dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a), 43.2(f). We dismiss any other pending motions as moot.


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