In Re: Estate of James Donald Loveless, Deceased--Appeal from 62nd District Court of Franklin County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-03-00005-CV
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IN RE ESTATE OF
JAMES DONALD LOVELESS, DECEASED
On Appeal from the 62nd Judicial District Court
Franklin County, Texas
Trial Court No. 9149
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION

Rosa Loveless appeals the trial court's judgment in favor of Wanda Loveless in an action to determine the heirs of James Donald Loveless, who died intestate in a traffic accident. The trial court signed the judgment on November 19, 2002. Rosa had to file a notice of appeal by December 19, 2002. See Tex. R. App. P. 26.1. Rosa filed her notice of appeal on January 10, 2003. Therefore, her appeal is untimely.

Rosa filed a motion for extension of time in which to file her notice of appeal on January 10, 2002, in which she asserts she did not receive notice of the judgment until December 31, 2002. The rules allow this Court to extend the time for filing a notice of appeal if, within fifteen days after the deadline for filing the notice of appeal, a party files the notice of appeal in the trial court and files a motion in this Court requesting an extension of time. Tex. R. App. P. 26.3.

In Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997), the Texas Supreme Court held, under the Rules of Appellate Procedure then extant, that a motion for extension is implied when an appellant, acting in good faith, files an appeal bond after the time allowed by the rules, but still within the time for filing a request for an extension. Courts since Verburgt have applied its reasoning under a later version of the Rules of Appellate Procedure to notices of appeal filed within fifteen days of the last day for filing a notice of appeal. See, e.g., Chilkewitz v. Winter, 25 S.W.3d 382, 383 (Tex. App.-Fort Worth 2000, no pet.) (per curiam); Indus. Servs. U.S.A., Inc. v. Am. Bank, N.A., 17 S.W.3d 358, 359 (Tex. App.-Corpus Christi 2000, no pet.) (per curiam); Smith v. Houston Lighting & Power Co., 7 S.W.3d 287, 288 (Tex. App.-Houston [1st Dist.] 1999, no pet.). In those cases, the courts implied a request for an extension from the late filed notice of appeal and gave the appellant an opportunity to give a reasonable explanation of the need for an extension.

This case does not present a situation in which we can imply a request for an extension because the notice of appeal was filed twenty-two days after it was due to be filed, well beyond the deadline under the rule for filing a request for an extension. See Tex. R. App. P. 26.3. This Court is without jurisdiction over the appeal. Rosa's motion to extend is overruled. (1)

We dismiss the appeal for want of jurisdiction.

 

Josh R. Morriss, III

Chief Justice

 

Date Submitted: January 22, 2003

Date Decided: January 23, 2003

 

1. If, as Rosa contends, she did not receive timely notice of the judgment, she may have a remedy under Tex. R. Civ. P. 306a(4), (5).