JIMIE DIANNE OWSLEY v. BRIAN LEON OWSLEY (2017)

MEMORANDUM OPINION

Memorandum Opinion by Justice Benavides

Appellant Jimie Dianne Owsley, proceeding pro se, attempted to perfect an appeal from a judgment rendered by the 319th District Court of Nueces County, Texas in cause number 2014-FAM-1876-G. We conclude that her notice of appeal was untimely, and accordingly, we dismiss her appeal for want of jurisdiction.

The final judgment in this matter, a final decree of divorce, was signed on February 19, 2016. Appellant filed a notice of appeal on October 25, 2016. On January 20, 2017, the Clerk of this Court notified appellant that it appeared that her appeal was not timely perfected. Appellant was advised that the appeal would be dismissed if the defect was not corrected within ten days from the date of receipt of the Court's directive.

On January 31, 2017, appellant filed an amended notice of appeal stating that she “intend[ed] to appeal both the September 30, 2016 judgement” [sic] and “the final divorce judgement [sic] based on new evidence which will be put forth in my written argument that will document fraud upon the court, abuse of discovery practices, and perjury that was not addressed by the trial court due to bias, collusion, and failure to timely recuse.” Appellant did not furnish this Court with a copy of the “September 30, 2016” judgment that she references in her amended notice of appeal. The deputy district clerk has informed us that the record does not contain any orders or judgments signed on September 30, 2016.

The timely filing of a notice of appeal by any of the parties to a case gives an appellate court jurisdiction over the appeal. See Sweed v. Nye, 323 S.W.3d 873, 875 (Tex. 2010); see TEX. R. APP. P. 25.1(b). In an ordinary civil case, the notice of appeal must be filed within thirty days after the judgment or appealable order is signed. See TEX. R. APP. P. 26.1. This deadline may be extended to ninety days if any party timely files a motion for new trial, a motion to modify the judgment, a motion to reinstate under Texas Rule of Civil Procedure 165a, or makes an appropriate request for findings of fact and conclusions of law. See id.; see also Ryland Enter., Inc. v. Weatherspoon, 355 S.W.3d 664, 665 (Tex. 2011). The appellate court may extend the time to file the notice of appeal if, within fifteen days after the deadline passes, the appellant files: (1) the notice of appeal in the trial court, and (2) a motion for extension of time complying with Rule 10.5(b). See TEX. R. APP. P. 26.3; see id. R. 10.5(b); Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (construing the predecessor to Rule 26). The time for filing a notice of appeal is jurisdictional, and absent a timely filed notice of appeal or an extension request, we must dismiss the appeal. See Verburgt, 959 S.W.2d at 617; Garg v. Pham, 485 S.W.3d 91, 99 (Tex. App.—Houston [14th Dist.] 2015, no pet.).

The record before this Court fails to indicate that appellant filed a timely post-judgment motion which would extend the appellate deadlines, so her notice of appeal was due within thirty days after the judgment was signed, or by March 21, 2016. See TEX. R. APP. P. 4.1(b). Nevertheless, the notice of appeal was not filed until October 25, 2016, approximately seven months later.

The Court, having examined and fully considered the documents on file and appellant's failure to timely perfect her appeal, is of the opinion that the appeal should be dismissed for want of jurisdiction. See Verburgt, 959 S.W.2d at 617; Garg, 485 S.W.3d at 99. Accordingly, the appeal is hereby DISMISSED for want of jurisdiction. See TEX. R. APP. P. 42.3(a).

GINA M. BENAVIDES, Justice