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Western Credit Co. v. Olshan Enterprises, Inc. , 714 S.W.2d 137 ( 1986 )


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  • 714 S.W.2d 137 (1986)

    WESTERN CREDIT COMPANY, Trustee, Appellant,
    v.
    OLSHAN ENTERPRISES, INC. and Allied Deer Park Bank, Appellees.

    No. 01-86-0442-CV.

    Court of Appeals of Texas, Houston (1st Dist.).

    August 7, 1986.

    *138 Meyer Jacobson, Houston, for appellant.

    James H. Pearson, De Lange, Hudspeth, Pitman & Katz, Houston, for appellees.

    Before EVANS, C.J., and SAM BASS and WARREN, JJ.

    OPINION

    WARREN, Justice.

    This is an appeal from a summary judgment entered against appellant, Western Credit Company ("Western Credit"). Western Credit has filed a motion for extension of time to file the cost bond. Appellee, Olshan Enterprises, Inc. ("Olshan"), opposes the motion, and has also filed a motion to dismiss the appeal for want of jurisdiction. For the reasons specified below, we grant Olshan's motion and dismiss the appeal.

    The parties disagree about the date the judgment against Western Credit became final and about whether a motion for new trial filed by Western Credit was effective. For the sake of simplicity, we will assume that the judgment became final on the latest date possible, March 5, 1986, and that the motion for new trial was valid.

    Olshan has filed its motion for dismissal because no transcript or motion for extension of time to file a transcript has been filed in this appeal. The transcript and statement of facts are due 100 days from the entering of judgment, if a motion for new trial is filed. Tex.R.Civ.P. 386. An extension of time for filing the transcript may be granted if a motion reasonably explaining the need for an extension is filed within 15 days of the last date for filing the transcript. Tex.R.Civ.P. 21c. The 15-day grace period is jurisdictional. B.D. Click Co. v. Safari Drilling Corp., 638 S.W.2d 860, 862 (Tex.1982). If a motion for extension of time is not filed within the 15-day time period, the court of appeals does not have authority to consider the motion and may dismiss or affirm the appeal. Id.

    The transcript was due on June 13, 1986. Tex.R.Civ.P. 386. Since it was not filed on that date, Western Credit had to file a request for an extension of time within 15 days—by June 28, 1986. No motion was filed by June 28.

    Having received no motion for extension of time, we grant Olshan's motion to dismiss the appeal, and deny as moot Western Credit's motion for an extension of time to file the cost bond. Matter of Estate of Kreft, 674 S.W.2d 322, 323 (Tex.App.- Houston [1st Dist.] 1983, no writ).

    The appeal is dismissed.