Dannah Rose, Jr. v. Carol Kyer

• Court: Court of Appeals of Texas
• Decided: July 12, 2012
• Docket: 02-12-00189-CV
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-12-00189-CV

DANNAH ROSE, JR. APPELLANT

V.

CAROL KYER APPELLEE

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FROM THE 393RD DISTRICT COURT OF DENTON COUNTY

MEMORANDUM OPINION1

Appellant Dannah Rose, Jr. attempts to appeal from an order signed

February 10, 2012, granting summary judgment in favor of Appellee Carol Kyer.

A motion for new trial was filed March 10, 2012, making the notice of appeal due

May 10, 2012. See Tex. R. App. P. 26.1(a). Rose filed a notice of appeal on May

11, 2012.

1 See Tex. R. App. P. 47.4. On May 16, 2012, we sent a letter to Rose stating our concern that we

lacked jurisdiction over this appeal because Rose’s notice of appeal was not

timely filed. We informed Rose that unless he, or any party desiring to continue

the appeal, filed a response showing a reasonable explanation for the late filing

of the notice of appeal on or before May 29, 2012, the appeal could be dismissed

for want of jurisdiction. See Tex. R. App. P. 42.3(a), 44.3. To date, we have

received no response from Rose. Kyer, however, filed a motion to dismiss the

appeal for want of jurisdiction.

The time for filing a notice of appeal is jurisdictional in this court, and

absent a timely-filed notice of appeal or extension request, we must dismiss the

appeal. See Tex. R. App. P. 2, 25.1(b), 26.3; Jones v. City of Houston, 976

S.W.2d 676, 677 (Tex. 1998); Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex.

1997). 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 period in which appellant would be entitled to move to

extend the filing deadline under rule 26.3. See Jones, 976 S.W.2d at 677;

Verburgt, 959 S.W.2d at 617; see also Tex. R. App. P. 26.1, 26.3. However,

when a motion for extension is implied, it is still necessary for the appellant to

reasonably explain the need for an extension. See Jones, 976 S.W.2d at 677;

Verburgt, 959 S.W.2d at 617.

2 Because Rose’s notice of appeal was untimely and because Rose did not

provide any explanation for needing an extension, we grant Kyer’s motion and

dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 2, 25.1(b), 26.3;

Jones, 976 S.W.2d at 677; Verburgt, 959 S.W.2d at 617; Chilkewitz v. Winter, 25

S.W.3d 382, 383 (Tex. App.—Fort Worth 2000, no pet.).

PER CURIAM

PANEL: WALKER, MCCOY, and MEIER, JJ.

DELIVERED: July 12, 2012