Thomas Wayne Florence v. Wanette Marie Florence

Opinion issued September 17, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00570-CV
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THOMAS WAYNE FLORENCE, Appellant
V.
WANETTE MARIE FLORENCE, Appellee
On Appeal from the County Court at Law No. 3
Galveston County, Texas
Trial Court Case No. 12-FD-2877
MEMORANDUM OPINION
Appellant, Thomas Wayne Florence, attempts to appeal from the trial court’s
judgment signed January 16, 2013. We dismiss the appeal.
Generally, a notice of appeal is due within thirty days after the judgment is
signed. See TEX. R. APP. P. 26.1. The deadline to file a notice of appeal is
extended to 90 days after the date the judgment is signed if, within 30 days after
the judgment is signed, any party 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. Id.; TEX. R. CIV. P. 329b(a), (g). The time
to file a notice of appeal may also be extended if, within 15 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 15-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
(Tex. 1997).
Here, the trial court signed the final judgment on January 16, 2013.
Florence timely filed a motion for new trial on February 1, 2013. See TEX. R. CIV.
P. 329b. Therefore, Florence’s notice of appeal was due by April 16, 2013. See
TEX. R. APP. P. 26.1.
Florence untimely filed his notice of appeal on June 3, 2013.1 Without a
timely filed notice of appeal, this Court lacks jurisdiction over the appeal. See TEX.
R. APP. P. 25.1.
1
Florence dated his notice of appeal on May 26, 2013. Therefore, even if we
assume Florence filed his notice on that date, his notice was filed after the 15-day
extension period and was untimely. See TEX. R. APP. P. 26.1, 26.3; see also TEX.
2
On August 5, 2013, we notified Florence that his appeal was subject to
dismissal for want of jurisdiction unless, by August 15, 2013, he filed a response
showing grounds for continuing the appeal. See TEX. R. APP. P. 42.3(a). Florence
filed a response, but it does not show grounds for continuing the appeal.
Accordingly, we dismiss the appeal for want of jurisdiction. See TEX. R.
APP. P. 43.2(f). We dismiss any pending motions as moot.
PER CURIAM
Panel consists of Justices Jennings, Sharp, and Brown.
R. APP. P. 9.2(b); Campbell v. State, 320 S.W.3d 338, 342 (Tex. Crim. App.
2010).
3