Smile Artist Dentistry, LLC and Rodrigo Cabrera v. Houston Auto M. Imports Greenway, Ltd. D/B/A Mercedes-Benz of Houston Greenway

Opinion issued June 14, 2016

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-16-00263-CV ——————————— SMILE ARTIST DENTISTRY, LLC AND RODRIGO CABRERA, Appellants V. HOUSTON AUTO M. IMPORTS GREENWAY, LTD. D/B/A MERCEDES-BENZ OF HOUSTON GREENWAY, Appellee

On Appeal from the 151st District Court Harris County, Texas Trial Court Case No. 2014-43726

MEMORANDUM OPINION

Appellants, Smile Artist Dentistry, LLC and Rodrigo Cabrera, attempt to appeal from the trial court’s final summary judgment signed on November 30, 2015. *2 Appellee, Houston Auto M. Imports Greenway, Ltd., doing business as Mercedes-Benz of Houston Greenway, has filed a motion to dismiss the appeal for lack of jurisdiction and seeks damages for a frivolous appeal. Appellants have not responded to the motion.

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 ninety days after the date the judgment is signed if, within thirty days after the judgment is signed, any party files a motion for new trial, motion to modify the judgment, or motion to reinstate. Id.; see TEX. R. CIV. P. 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. 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 extension period provided by rule 26.3. See id. 26.1, 26.3; Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997).

Here, the trial court signed the final judgment on November 30, 2015. And appellants timely filed a motion for new trial on December 30, 2015. Their notice of appeal, therefore, was due by February 29, 2016, or March 15, 2016, with a *3 fifteen-day extension. Appellants filed their notice of appeal on March 28, 2016, after the fifteen-day extension period had ended.

Once the fifteen-day extension period for filing a notice of appeal has passed without the filing of a notice of appeal, a party can no longer invoke the appellate court’s jurisdiction. Verburgt, 959 S.W.2d at 617; In re Estate of Padilla, 103 S.W.3d 563, 567 (Tex. App.—San Antonio 2003, no pet.). Without a timely filed notice of appeal, this Court lacks jurisdiction over the appeal. See TEX. R. APP. P. 25.1. If the notice is untimely, a court of appeals can take no action other than to dismiss the proceeding. Cartmill v. Cartmill, No. 14-06-00583-CV, 2006 WL 2164721, at *1 (Tex. App.—Houston [14th Dist.] Aug. 3, 2006, pet. denied) (mem. op.) (citing In re A.L.B., 56 S.W.3d 651, 652 (Tex. App.—Waco 2003, no pet.)).

Because appellants filed their notice of appeal beyond the fifteen-day extension period, we must dismiss the appeal. See Cartmill, 2006 WL 2164721, at *1. Accordingly, we grant appellee’s motion and dismiss the appeal for want of jurisdiction. We deny appellee’s request for costs and fees for a frivolous appeal and dismiss as moot any other pending motions.

PER CURIAM

Panel consists of Chief Justice Radack and Justices Jennings and Lloyd.