Summary
declining request to amend notice of appeal to allow appeal of "completely different order . . . not mentioned in the notice of appeal"
Summary of this case from Johnson v. Harris Cnty.Opinion
No. 14-02-01286-CV.
Opinion filed March 13, 2003.
Appeal from the 247th District Court, Harris County, Texas, Trial Court Cause No. 97-19946.
Dismissed.
Panel consists of Justices ANDERSON, SEYMORE, and GUZMAN.
MEMORANDUM OPINION
This is an attempted appeal from an order signed July 18, 2002. The July 18, 2002, order amended the original order, signed on May 7, 2002, dismissing appellant's petition for enforcement, reformation, clarification and/or aid of judgment and for declaratory judgment. A motion for new trial was filed on June 6, 2002. Appellant's notice of appeal was untimely filed on November 26, 2002.
When an appellant has filed a timely motion for new trial, motion to modify the judgment, motion to reinstate, or request for findings of fact and conclusion of law, the notice of appeal must be filed within ninety days after the date the judgment is signed. See Tex.R.App.P. 26.1(a).
Appellant's notice of appeal was not filed timely. 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 grace period provided by Rule 26.3 for filing a motion for extension of time. See Verburgt v. Dorner, 959 S.W.2d 615, 617-18 9 (1997) (construing the predecessor to Rule 26). However, the appellant must offer a reasonable explanation for failing to file the notice of appeal in a timely manner. See Tex.R.App.P. 26.3, 10.5(b)(1)(C); Verburgt, 959 S.W.2d at 617-18. Appellant's notice of appeal was not filed within the fifteen-day period provided by rule 26.3
On January 29, 2003, notification was transmitted to all parties of the Court's intent to dismiss the appeal for want of jurisdiction. See Tex.R.App.P. 42.3(a). Appellant's response fails to demonstrate that this Court has jurisdiction to entertain the appeal. In her response, appellant stated that she is appealing an order signed October 30, 2002, rather than the July 18, 2002, order specified in her notice of appeal.
Rule 25.1(d) requires an appellant to include certain information in the notice of appeal. Specifically, the notice must state the date of the judgment or order appealed from. Tex.R.App.P. 25.1(d). Appellant specified in her notice of appeal that she was appealing the July 18, 2002 amended order. The rules allow an appellant to amend a notice of appeal to correct a defect or omission, Tex.R.App.P. 25.1(f), but the notice of appeal filed in this case contains neither a defect nor an omission. Appellant specified the order she intended to appeal; however, she failed to file this notice of appeal within the required period for perfection.
Postjudgment orders in aid and clarification of divorce decrees are appealable, provided they are final orders. Reynolds v. Reynolds, 860 S.W.2d 568, 570 (Tex.App.-Dallas 1993, writ denied). To be final, the order must dispose of all the parties and all the issues, leaving nothing for further decision except as necessary to carry the decree into effect. Id. The July 18, 2002, order was a final, appealable order adjudicating appellant's motion for enforcement concerning provisions for spousal maintenance. See Richey v. Bolerjack, 589 S.W.2d 957, 959 (Tex. 1979) (finding a judgment concerning child support arrearages final and appealable because the judgment contains no specific reservation of judgment on any other part of the case pending before the court); Reynolds, 860 S.W.2d at 570 (finding order final and appealable that granted motion for enforcement seeking payment of ordered maintenance expenses).
Appellant now asks that we ignore the specific language in her notice of appeal indicating she is appealing the July 18th order, and instead, asks that we allow her to appeal a completely different order, signed on October 30, 2002, not mentioned in the notice of appeal. If the two orders were not separately appealable, appellant could amend a notice of appeal from an interlocutory order to include a subsequent final judgment. See, e.g., Noorian v. McCandless, 37 S.W.3d 170, 173 (Tex.App.-Houston [1st Dist.] 2001, pet. denied)(party can amend defective notice of appeal that appealed from interlocutory order leading to final judgment). In this case, however, there is no interlocutory order. The July 18th and October 30th orders are separately appealable. The October 30th order adjudicates a separate motion, unrelated to the motion adjudicated by the July 18, 2002, order. The October 30th order denied appellant's motion for enforcement by contempt for failure to maintain health insurance and for failure to pay uninsured expenses and for clarification and for judgment nunc pro tunc. Because the October 30th order adjudicates a separate and distinct motion for enforcement, it is also a final and appealable order. Thus, there is no defect or omission in the notice of appeal to be amended. No notice of appeal was filed by appellant specifying the intent to appeal the October 30th order.
Because we find the notice of appeal challenging the July 18, 2002, order was untimely filed and may not be amended, we have no jurisdiction over this appeal. Accordingly, the appeal is ordered dismissed.