Cynthia Dawn Franklin v. Jason Lee Franklin

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-12-00471-CV

Cynthia Dawn FRANKLIN, Appellant

v.

Jason Lee FRANKLIN, Appellee

From the 25th Judicial District Court, Guadalupe County, Texas Trial Court No. 11-1926-CV Honorable W.C. Kirkendall, Judge Presiding

PER CURIAM

Sitting: Sandee Bryan Marion, Justice Phylis Speedlin, Justice Rebecca Simmons, Justice

Delivered and Filed: November 21, 2012

DISMISSED FOR LACK OF JURISDICTION

The trial court signed a final judgment on April 20, 2012. A timely motion for new trial

was filed on May 21, 2012. TEX. R. CIV. P. 329b(a). Because appellant timely filed her motion

for new trial, the notice of appeal was due to be filed on July 19, 2012. See TEX. R. APP. P.

26.1(a). Appellant filed her notice of appeal on July 26, 2012. A motion for extension of time in

which to file the notice of appeal was due on August 3, 2012, but was not filed. See TEX. R. APP.

P. 26.3. 04-12-00471-CV

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 (Tex. 1997) (construing the predecessor to Rule 26); Dimotsis v.

State Farm Lloyds, 966 S.W.2d 657, 657 (Tex. App.–San Antonio 1998, no pet.) (stating same

under current Rule 26). However, the appellant must offer a reasonable explanation for failing to

file the notice of appeal in a timely manner. See id.; TEX. R. APP. P. 26.3, 10.5(b)(1)(C).

Accordingly, on October 2, 2012, this court ordered appellant to file, no later than October 17,

2012, a response presenting a reasonable explanation for failing to file the notice of appeal in a

timely manner. Our order informed appellant that if she failed to respond within the time

provided, the appeal would be dismissed. See TEX. R. APP. P. 42.3(c). No response has been

filed.

Because appellant’s notice of appeal was not timely filed and because she did not provide

any explanation for needing an extension of time, this appeal is dismissed. See Verburgt, 959

S.W.2d at 617.

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