Flores v. Citizens State Bank of Roma

OPINION

Heralio Flores and Marco Antonio Flores (collectively “Flores”) have asked this court to direct the trial court clerk to file the transcript in this appeal. Two of the named appellees, Citizens State Bank and Martin Canales (collectively “the Bank”), have responded to Flores’s motion and moved to *79dismiss Flores’s appeal because it was not timely perfected. Flores opposes the Bank’s motion to dismiss and asks that we instead strike the motion. Because the uneontro-verted facts established by the parties’ motions and affidavits conclusively demonstrate Flores did not timely perfect this appeal, we grant the Bank’s motion and dismiss Flores’s appeal for lack of jurisdiction. Necessarily, therefore, we also dismiss Flores’s motions.

PROCEDURAL BACKGROUND

On October 8, 1996, the trial court signed an order dismissing Flores’s petition for a bill of review.1 Thereafter, on October 28, 1996, Flores timely filed a motion for new trial.2 However, Flores did not file a notice of appeal until March 3,1997,3 and he did not file an affidavit of inability to pay court costs until March 4,1997.4

Discussion

The Bank argues Flores’s appeal should be dismissed because Flores did not file a perfecting instrument within ninety days of the date the trial court signed the dismissal order, as required by Rule 41(a)(1) of the Texas Rules of Appellate Procedure. We agree.

If a timely motion for new trial is filed, the appellant must file either “a document in a bona fide attempt to invoke the appellate court’s jurisdiction” within ninety days of the date the trial court signed the order or judgment to be appealed or a motion to extend this time period within fifteen days of the date the perfecting instrument was due. Tex.R.App. P. 41(a)(1)—(2); e.g., Grand Prairie Indep. Sch. Dist. v. Southern Parts Imports, Inc., 813 S.W.2d 499, 500 (Tex. 1991). In this ease, however, the parties’ motions and affidavits, as well as the certified copies of the dismissal order and the affidavit of inability, establish that Flores did not file any document within either the ninety days prescribed by Rule 41(a)(1) or the fifteen-day window established by Rule 41(a)(2).5 In fact, Flores has not at any time or in any way provided this court with any explanation for his failure to file' a perfecting instrument within the time periods specified by the rules. Compare Verburgt v. Dorner, 928 S.W.2d 654 (Tex.App.—San Antonio 1996, writ granted) (en banc). Accordingly, Flores did not timely perfect this appeal.

Conclusion

Because Flores did not timely perfect this appeal, this court is without jurisdiction to consider it. Therefore, the Bank’s motion to dismiss is granted, and Flores’s appeal, as well as his motions, are dismissed for lack of jurisdiction.