Abraham Melawer v. Ocwen Loan Servicing, LLC

• Court: Court of Appeals of Texas
• Decided: June 14, 2012
• Docket: 14-12-00417-CV
• Status: Published

Opinion

Motion Denied as Moot; Appeal Dismissed and Memorandum Opinion filed June 14, 2012.

In The

Fourteenth Court of Appeals ____________

NO. 14-12-00417-CV ____________

ABRAHAM MELAWER, Appellant

V.

OCWEN LOAN SERVICING, Appellee

On Appeal from the 80th District Court Harris County, Texas Trial Court Cause No. 2010-41060

MEMORANDUM OPINION

This is an attempted appeal from a judgment signed January 10, 2012. A timely motion for new trial was filed February 9, 2012. Appellant’s notice of appeal was filed April 30, 2012.

When appellant has filed a timely motion for new trial, motion to modify the judgment, motion to reinstate, or request for findings of fact and conclusions 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 due April 9, 2012. 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 Texas Rule of Appellate Procedure 26.1, but within the fifteen-day grace period provided by Texas Rule of Appellate Procedure 26.3 for filing a motion for extension of time. See Verburgt v. Dorner, 959 S.W.2d 615, 617-18 (1997) (construing the predecessor to Rule 26). The fifteen-day grace period ended on April 24, 2012. Appellant’s notice of appeal was not filed within the fifteen-day period provided by Rule 26.3.

Appellant filed a motion to extend time to file his notice of appeal. On June 1, 2012, notification was transmitted to all parties of the court’s intention to dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a). In his response appellant erroneously asserts the notice of appeal and the motion for extension of time were filed on a date within the 15-day grace period -- April 30, 2012. Appellant fails to demonstrate that this Court has jurisdiction to entertain the appeal.

Accordingly, appellant’s motion is denied as moot and the appeal is ordered dismissed.

PER CURIAM

Panel consists of Justices Frost, Christopher and McCally.