                              Fourth Court of Appeals
                                    San Antonio, Texas
                                MEMORANDUM OPINION
                                        No. 04-14-00265-CV

                                         John DONOHUE,
                                             Appellant

                                                 v.

                                        Martha DONOHUE,
                                             Appellee

                     From the 288th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2012CI19573
                           Honorable David A. Canales, Judge Presiding

PER CURIAM

Sitting:         Marialyn Barnard, Justice
                 Rebeca C. Martinez, Justice
                 Patricia O. Alvarez, Justice

Delivered and Filed: July 30, 2014

DISMISSED FOR WANT OF JURISDICTION

           Appellant John M. Donohue appeals a final decree of divorce signed October 8, 2013.

Appellant did not file a timely motion that would have extended the appellate timetable. See TEX.

R. CIV. P. 329b(g); TEX. R. APP. P. 26.1(a). Thus, the notice of appeal was due November 7, 2013,

or a motion for extension of time to file the notice of appeal was due fifteen days later on November

24, 2013 (November 22, 2013, the actual due date, was a Saturday). See TEX. R. APP. P. 26.1,

26.3; see also TEX. R. APP. P. 4.1(a). Appellant did not file a timely notice of appeal or a timely
                                                                                       04-14-00265-CV


motion for extension of time to file the notice of appeal. However, on April 22, 2014, appellant

filed a notice of appeal and a motion for extension of time to file a notice of appeal.

       The supreme court holds that “once the period for granting a motion for extension of time

under Rule [26.3] has passed, a party can no longer invoke the appellate court’s jurisdiction.” See

Verburgt v. Dorner, 959 S.W.2d 615, 615 (1997) (construing predecessor to Rule 26). We

therefore ordered appellant to file a response showing cause why this appeal should not be

dismissed for lack of jurisdiction. We advised appellant that if he failed to satisfactorily respond

within the time provided, the appeal would be dismissed. See TEX. R. APP. P. 42.3(a), (c).

       In response, appellant filed two documents. In the first document, entitled “Response to

Order Dated July 2, 2014,” appellant contends the appeal should not be dismissed for want of

jurisdiction because this is a restricted appeal pursuant to Rule 30 of the Texas Rules of Appellate

Procedure, which permits “a party who did not participate — either in person or through counsel

— in the hearing that resulted in the judgment complained of and who did not timely file a

postjudgment motion or request for findings of fact and conclusions of law, or a notice of appeal

within the time permitted by Rule 26.1(a),” to file a notice of appeal within six months of the date

of the judgment. TEX. R. APP. P. 30, 26.1(c). We hold appellant is not entitled to the benefit of

this rule because the clerk’s record establishes appellant participated in person and through counsel

in the hearing that resulted in the final decree of divorce, the judgment complained of. Specifically,

the judgment establishes appellant and his counsel appeared at the final hearing. The record

contains a bench warrant establishing the trial court ordered appellant to be brought to court for

the hearing, and a notice of appearance of counsel for Anton Paul Hajek III.

       Appellant contends he did not “participate” because at the final hearing, he was confined

to a wheelchair and “under heavy sedation.” There is nothing in the record to substantiate this

contention. He also asserts he was not represented by counsel because his counsel of record did
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not “show up” at the hearing; rather, Mr. Hajek “sat in” for his counsel of record “to act as a

mediator.” Again, the record does not support these contentions. The record reflects appellant’s

original attorney was permitted to withdraw by order of the trial court. The trial court’s order

specifically states appellant “consented to the motion.”        Moreover, Mr. Hajek’s notice of

appearance states that although he was “vicariously retained” by appellant’s mother, appellant

consented to Mr. Hajek’s appearance as “attorney of record in this cause.”

        In addition to filing the “Response,” appellant also filed a motion asking this court,

pursuant to Rule 2 of the Rules of Appellate Procedure, to suspend the filing deadline for the notice

of appeal and permit appellant to pursue the appeal despite the untimely notice of appeal. See TEX.

R. APP. P. 2. However, Rule 2 specifically states that a court may not construe Rule 2 to “alter the

time for perfecting an appeal in a civil case.” Accordingly, we deny appellant’s motion to suspend

the rules.

        As noted above, appellant filed a motion to extend time to file the notice of appeal, but far

outside the parameters of the rules. Accordingly, we also deny appellant’s motion to extend time

to file the notice of appeal as it is untimely.

        Based on the foregoing, we hold the notice of appeal was untimely, and appellant’s

response does not establish we have jurisdiction over this appeal. Accordingly, we dismiss this

appeal for want of jurisdiction.


                                                   PER CURIAM




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