Gregory Ray Wheeler v. Jalane Suzette Theis

Opinion issued May 20, 2014.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00029-CV
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GREGORY RAY WHEELER, Appellant
V.
JALANE SUZETTE THEIS, Appellee
On Appeal from the 308th District Court
Harris County, Texas
Trial Court Case No. 2013-18731
MEMORANDUM OPINION
Appellant, Gregory Ray Wheeler, attempts to appeal from a final decree of
divorce signed on September 24, 2013. Wheeler has filed a “Motion to Extend the
Appellate Deadline.” Appellee, Jalane Suzette Theis, has filed a motion to dismiss
the appeal for want of jurisdiction. We deny Wheeler’s motion, grant Theis’s
motion, and 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 ninety days after the date the judgment is signed if 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); see also TEX. R. CIV. P. 297, 329b(a), (g). The time to file
a notice of appeal also may 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; see also Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex.
1997) (holding that motion for extension of time is implied when appellant, acting
in good faith, files notice of appeal beyond Rule 26.1 deadline but within Rule 26.3
fifteen-day extension period).
Here, the trial court signed the final judgment on September 24, 2013.
Wheeler timely filed a motion for new trial and a request for findings of fact and
conclusions of law. Accordingly, his notice of appeal was due on December 23,
2013, or by January 7, 2014, with a fifteen-day extension. See TEX. R. APP. P.
26.1(a), 26.3; Verburgt, 959 S.W.2d at 617.
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Wheeler untimely filed a “Motion to Extend Appellate Deadline,” requesting
an extension of time to file his notice of appeal on January 9, 2014. Because
Wheeler’s motion to extend the deadline to file his notice of appeal was untimely
filed, the motion cannot extend the deadline. See TEX. R. APP. P. 26.3. Wheeler’s
notice of appeal, electronically filed on January 8, 2014, was untimely. Without a
timely filed notice of appeal, this Court lacks jurisdiction over the appeal. See TEX.
R. APP. P. 25.1.
Accordingly, we deny Wheeler’s motion, grant Theis’s motion, and 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.
PER CURIAM
Panel consists of Justices Keyes, Sharp, and Huddle.
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