Kenton Arthur Manion v. Lauren Dawn Manion ( 2016 )

NUMBER 13-16-00501-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
____________________________________________________________
KENTON ARTHUR MANION, Appellant,
v.
LAUREN DAWN MANION, Appellee.
____________________________________________________________
On appeal from the 347th District Court
of Nueces County, Texas.
____________________________________________________________
MEMORANDUM OPINION
Before Justices Garza, Perkes, and Longoria
Memorandum Opinion Per Curiam
Appellant, Kenton Arthur Manion, attempted to perfect an appeal from a judgment
entered by the 347th District Court of Nueces County, Texas, in cause number 2015-
FAM-5258-H. The trial court entered a final judgment in this cause on June 22, 2016.
A motion for new trial was filed on August 19, 2016, and notice of appeal was filed on
September 22, 2016.
On September 23, 2016, the Clerk of this Court notified appellant that it appeared
that the appeal had not been timely perfected. Appellant was advised that, if the defect
was not corrected within ten days from the date of receipt of this Court=s letter, the appeal
would be dismissed. Appellant has responded by filing a “Motion for Continuance” which
asserts the notice of appeal is timely because the order denying the motion for new trial
was signed on August 25, 2016, therefore, the notice of appeal was not due until
September 24, 2016. Appellant alternatively requests this Court grant appellant
additional time to perfect his appeal.
Texas Rule of Appellate Procedure 26.1 provides that an appeal is perfected when
notice of appeal is filed within thirty days after the judgment is signed, unless a motion for
new trial is timely filed. TEX. R. APP. P. 26.1(a)(1). Where a timely motion for new trial
has been filed, notice of appeal shall be filed within ninety days after the judgment is
signed. Id. 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 grace period provided by rule 26.3 for filing a motion for extension
of time. See Verburgt v. Dorner, 959 S.W.2d 615, 617-18, 619 (1997).
The trial court signed the final judgment on June 22, 2016. Appellant’s deadline
for filing the motion for new trial was July 22, 2016. The motion for new trial was untimely
because it was filed on August 19, 2016. Although the motion for new trial was not ruled
upon until August 25, 2016, the deadline to file a notice of appeal runs from the date of
the final judgment and not from the denial of the motion for new trial. See Naaman v.
Grider, 126 S.W.3d 73, 74 (Tex. 2003); Garza v. Hibernia Nat’l Bank, 227 S.W.3d 233,
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233 n.1, 234 (Tex. App.—Houston [1st Dist.] 2007, no pet.). Appellant’s notice of appeal
was due on July 22, 2016, but was not filed until September 22, 2016. Although
appellant filed a motion for extension of time to file the notice of appeal, the notice of
appeal was filed beyond the fifteen-day grace period. See TEX. R. APP. P. 26.3; Verburgt,
959 S.W.2d at 617–18. Without a timely filed notice of appeal, the Court lacks
jurisdiction over this appeal. See TEX. R. APP. P. 25.1.
The Court, having examined and fully considered the documents on file and
appellant’s motion for continuance, is of the opinion that the appeal should be dismissed
for want of jurisdiction. Accordingly, appellant’s motion for continuance is DENIED and
the appeal is hereby DISMISSED FOR WANT OF JURISDICTION. See TEX. R. APP. P.
42.3(a).
PER CURIAM
Delivered and filed the
10th day of November, 2016.
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