TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-13-00190-CV

Mindy Hamilton, Appellant

v.

Brooke Bell, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT

NO. D-1-FM-11-006350, HONORABLE TIM SULAK, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

PER CURIAM

Brooke Bell filed a motion to dismissthis appeal for lack of jurisdiction, arguing that

Mindy Hamilton’s notice of appeal is untimely. See Tex. R. App. P. 26.1. Hamilton’s March 15,

2013 notice of appeal argues that although the judgment in the underlying suit was signed on

December 17, 2012, the filing of her motion for new trial and motion for findings of fact and

conclusions of law extended her appellate timetable by 90 days. See Tex. R. App. P. 26.1(a) (certain

postjudgment motions extend time for filing notice of appeal).1

Motions for new trial are timely if filed within 30 days after the judgment is signed.

Tex. R. Civ. P. 329b(a). Requests for findings of fact and conclusions of law are timely if filed

within 20 days after the judgment is signed. Tex. R. Civ. P. 296. Under these rules, Hamilton’s

 Hamilton also filed an amended notice of appeal on March 15, 2013. 1
deadline for filing her motion for new trial was January 16, 2013, and her deadline for filing her

request for findings of fact and conclusions of law was January 7, 2013. See Tex. R. App. P. 4;

Tex. R. Civ. P. 296, 329b(a). The record reflects that Hamilton e-filed an untimely motion for new

trial on January 18, 2013, and an untimely request for findings of fact and conclusions of law on

January 9, 2013. Neither filing extended Hamilton’s deadline for her notice of appeal, and the time

to seek an extension for filing the notice of appeal has expired. See Tex. R. App. P. 26.3. After the

time for filing a notice of appeal and seeking an extension of time to file the notice of appeal have

expired, a partycannot invoke an appellate court’s jurisdiction. See Verburgt v. Dorner, 959 S.W.2d

615, 617 (Tex. 1997).

Hamilton does not dispute the filing dates that appear in the record, but she filed a

response arguing that her post-trial motions and her notice of appeal were timely. None of the cases

cited in Hamilton’s response provide a basis for concluding that Hamilton timely filed any post-trial

motion. Hamilton argues alternatively that Bell’s delay in filing the motion to dismiss waived any

complaint about Hamilton’s untimely filings. However, our appellate rules require a timely notice

of appeal to invoke an appellate court’s jurisdiction, and the lack of appellate jurisdiction

cannot be waived. See Tex. R. App. P. 25.1(b); Brashear v. Victoria Gardens of McKinney, L.L.C.,

302 S.W.3d 542, 546 (Tex. App.—Dallas 2009, no pet.) (“Appellate jurisdiction is never

presumed.”); Twist v. McAllen Nat’l Bank, 294 S.W.3d 255, 263 (Tex. App.—Corpus Christi 2009,

no pet.) (because proper verification was required to extend appellate timetable and affected

appellate court’s jurisdiction, the defect could not be waived for failure to raise it in the trial court);

United Heritage Corp. v. Black Sea Invs., Ltd., No. 10-03-00139-CV, 2005 Tex. App. LEXIS 1280,

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at *5-7 (Tex. App.—Waco Feb. 16, 2005, no pet.) (mem. op.) (appeal dismissed after briefing

because party’s motion for new trial and request for findings and conclusions were untimely and

failed to extend appellate timetable).

Because Hamilton’s March 15, 2013 notice of appeal from the December 17, 2012

judgment is untimely, we lack jurisdiction over this appeal. See Tex. R. App. P. 25.1, 26.1;

Verburgt, 959 S.W.2d at 617. We grant Bell’s motion and dismiss this appeal for want of

jurisdiction. See Tex. R. App. P. 42.3(a).

Before Justices Puryear, Rose, and Goodwin

Dismissed on Appellee’s Motion

Filed: December 20, 2013

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