Opinion
No. 02-19-00070-CV
05-09-2019
MELISSA ORTON SWARINGEN, Appellant v. FERMIN GUZMAN, Appellee
On Appeal from the 153rd District Court Tarrant County, Texas
Trial Court No. 153-284316-16 Before Kerr, Pittman, and Birdwell, JJ.
MEMORANDUM OPINION
Melissa Orton Swaringen attempts to appeal the trial court's order granting summary judgment in Fermin Guzman's favor.
On October 17, 2018, the trial court signed a final take-nothing summary judgment against Swaringen. Swaringen timely moved for reconsideration on November 16, 2018. See Tex. R. Civ. P. 329b(a). Swaringen's notice of appeal was therefore due January 15, 2019. See Tex. R. App. P. 26.1(a)(1). But Swaringen did not file her notice of appeal until February 28, 2019, 44 days late.
Swaringen's notice of appeal states that she is appealing from an order signed on February 15, 2019. But, as noted, the trial court signed a final judgment on October 17, 2018, and the deadline for filing a notice of appeal is based on the date the final judgment is signed. See Tex. R. App. P. 26.1(a).
On March 4, 2019, we notified Swaringen of our concern that we lack jurisdiction over this appeal because the notice of appeal was untimely. We cautioned her that this appeal may be dismissed for want of jurisdiction unless Swaringen or any party desiring to continue the appeal filed with this court, on or before March 14, 2019, a response showing grounds for continuing the appeal. See Tex. R. App. P. 42.3(a), 44.3. Neither Swaringen nor any other party has responded.
The time for filing a notice of appeal in this court is jurisdictional, and absent a timely filed notice of appeal or extension request, we must dismiss the appeal. See Tex. R. App. P. 2, 25.1(b), 26.1, 26.3; Jones v. City of Houston, 976 S.W.2d 676, 677 (Tex. 1998); Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). Swaringen's notice of appeal was untimely, and she did not move for an extension of time to file her notice of appeal. Accordingly, we dismiss this appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a), 43.2(f).
We cannot imply a motion to extend time because Swaringen filed her notice of appeal after the 15-day period in which she would have been entitled to move for an extension under rule 26.3. See Tex. R. App. P. 26.3; Jones, 976 S.W.2d at 677; Verburgt, 959 S.W.2d at 617; Carroll v. J. P. Morgan Chase Bank, No. 02-19-00014-CV, 2019 WL 490128, at *1 (Tex. App.—Fort Worth Feb. 7, 2019, no pet.) (mem. op.) (stating that "an implied motion for extension of time is of no help when the notice of appeal is filed more than fifteen days after the notice is due"); see also Tex. R. App. P. 26.1.
/s/ Elizabeth Kerr
Elizabeth Kerr
Justice Delivered: May 9, 2019