Annie Arlene Stevens v. Robert Stevens

MEMORANDUM OPINION No. 04-04-00221-CV Annie Arlene STEVENS, Appellant v. Robert STEVENS, Appellee From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 2000-CI-10449 Honorable Rebecca Simmons, Judge Presiding

PER CURIAM

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: June 2, 2004

DISMISSED FOR WANT OF JURISDICTION

The trial court signed a final judgment on January 16, 2004. Because appellant did not file a written motion for new trial, motion to modify the judgment, motion for reinstatement, or request findings of fact and conclusions of law, the notice of appeal was due to be filed on February 16, 2004. See Tex. R. App. P. 26.1(a). A motion for extension of time to file the notice of appeal was due on March 2, 2004. See Tex. R. App. P. 26.3. Appellant filed a notice of appeal on April 1, 2004 and never filed a motion for extension of time to file the notice of appeal.

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 (Tex. 1997) (construing the predecessor to Rule 26). But "once the period for granting a motion for extension of time under Rule [26.3] has passed, a party can no longer invoke the appellate court's jurisdiction." Id.

On May 11, 2004, we ordered appellant to show cause why her appeal should not be dismissed for want of jurisdiction. Appellant responded to our order on May 17, 2004. In her response, appellant argues that she timely filed her notice of appeal because she filed a premature motion to reconsider, which extended the deadline for filing her notice of appeal until April 16, 2004. We disagree with appellant's contention.

Generally, a premature motion to reconsider would operate to extend the deadline for filing a notice of appeal. See Tex. R. App. P. 26.1(a); 27.2; see also Padilla v. LaFrance, 907 S.W.2d 454, 458-59 (Tex. 1995). In this case, however, no written motion to reconsider was filed, and an oral motion does not extend the appellate deadlines. In re Dilley Indep. Sch. Dist., 23 S.W.3d 189, 191 (Tex. App.--San Antonio 2000, orig. proceeding). Appellant's oral motion to reconsider therefore did not extend the deadline for filing her notice of appeal. Accordingly, this appeal is dismissed for want of jurisdiction.

PER CURIAM