Carles E. Davis v. Euranella Davis

• Court: Court of Appeals of Texas
• Decided: October 9, 2003
• Docket: 14-03-00640-CV
• Status: Published

Opinion

Dismissed and Memorandum Opinion filed October 9, 2003

Dismissed and Memorandum Opinion filed October 9, 2003.

In The

Fourteenth Court of Appeals

____________

NO. 14-03-00640-CV

CHARLES E. DAVIS, Appellant

V.

EURANELLA DAVIS, Appellee

On Appeal from the 246th District Court

Harris County, Texas

Trial Court Cause No. 02-26897

M E M O R A N D U M   O P I N I O N

This is an attempted appeal from a final decree of divorce signed January 7, 2003. Appellant filed an untimely motion for new trial on March 10, 2003.  Appellant=s notice of appeal was not filed until May 28, 2003.

The notice of appeal must be filed within thirty days after the judgment is signed when appellant has not 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.  See Tex. R. App. P. 26.1.

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 July 17, 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 filed a response to the notice in which he states he attempted to file a restricted appeal within six months of the judgment.  See Tex. R. App. P. 26.1(c).  In a restricted appeal, the notice of appeal must: (1) state appellant is a party to the judgment but did not participateB either in person or through counsel B in the hearing that resulted in the judgment complained of; (2) state appellant did not timely file either a postjudgment motion, request for findings of fact and conclusions of law, or notice of appeal; and (3) be verified by appellant if appellant does not have counsel.  Tex. R. App. P. 25.1(d)(7).  Appellant=s notice of appeal does not comply with the rule governing restricted appeals.  Appellant=s response therefore fails to demonstrate that this Court has jurisdiction to entertain the appeal.

Accordingly, the appeal is ordered dismissed.  All pending motions are denied as moot. 

PER CURIAM

Judgment rendered and Memorandum Opinion filed October 9, 2003.

Panel consists of Chief Justice Brister and Justices Anderson and Seymore.