Xiomara Pena v. Maria C. Pena and Lourdes Pena

Opinion issued February 24, 2014

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-14-00853-CV ——————————— XIOMARA PENA, Appellant V. MARIA C. PENA AND LOURDES PENA, Appellees

On Appeal from the 165th District Court Harris County, Texas Trial Court Case No. 2012-73874

MEMORANDUM OPINION

Appellant, Xiomara Pena, seeks to appeal an order of the trial court denying a motion for new trial following the granting of a motion for summary judgment in favor of appellees. 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 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 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, 617–18 (Tex. 1997).

Here, the trial court signed the final judgment on May 14, 2014. A timely motion for new trial was filed on June 13, 2014. See TEX. R. CIV. P. 329b(a) (“A motion for new trial, if filed, shall be filed prior to or within thirty days after the judgment or other order complained of is signed.”). Because the motion for new trial was timely, appellant’s deadline to file a notice of appeal from the summary judgment was extended to August 14, 2014, or by August 29, 2014 with a 15-day extension. See TEX. R. APP. P. 26.1(a), 26.3. The order denying the motion for *3 new trial was signed September 23, 2014, but the denial of a motion for new trial did not extend the due date for a notice of appeal from the summary judgment. See In the Interest of K.A.F., 160 S.W.3d 923, 927 (Tex. 2005); In re M.A.H., 104 S.W.3d 568, 569 (Tex. App.—Waco 2002, no pet.). Appellant’s notice of appeal was not filed until October 20, 2014. Without a timely filed notice of appeal, this Court lacks jurisdiction over the appeal. See TEX. R. APP. P. 25.1.

On January 22, 2014, we notified appellant this appeal was subject to dismissal for want of jurisdiction unless a response was filed within ten days showing grounds for continuing the appeal. See TEX. R. APP. P. 42.3(a). No response was filed.

Accordingly, we dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a), (c); 43.2(f). We dismiss any pending motions as moot.

PER CURIAM

Panel consists of Justices Jennings, Higley, and Huddle.