Eirine Bouboudakis v. Stylianos Bouboudakis

• Court: Court of Appeals of Texas
• Decided: May 31, 2007
• Docket: 14-07-00256-CV
• Status: Published

Opinion

Dismissed and Memorandum Opinion filed May 31, 2007

Dismissed and Memorandum Opinion filed May 31, 2007.

In The

Fourteenth Court of Appeals

____________

NO. 14-07-00256-CV

EIRINE BOUBOUDAKIS, Appellant

V.

STYLIANOS BOUBOUDAKIS, Appellee

On Appeal from the 257th District Court

Harris County, Texas

Trial Court Cause No. 2005-72735

M E M O R A N D U M   O P I N I O N

According to information provided to the court, this appeal is from a final decree of divorce signed December 15, 2006.  Appellant filed a timely motion for new trial on January 16, 2007.  See Tex. R. Civ. P. 4 (extending the due date when the last date falls on a legal holiday); Tex. R. App. P. 4.1 (same).  Appellant=s notice of appeal was due on March 15, 2007, but it was not filed until March 19, 2006.  See Tex. R. App. P. 26.1(a) (requiring the notice of appeal to be filed within 90 days of judgment if a timely motion for new trial was filed).  Appellant did not file a motion for extension of time to file the notice of appeal.  See Tex. R. App. P. 26.3.

A motion for extension of time is Anecessarily implied@ when the perfecting instrument is filed within fifteen days of its due date.  Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997).  While an extension may be implied, appellant is still obligated to come forward with a reasonable explanation to support the late filing.  See Miller v. Greenpark Surgery Center Assocs., Ltd., 974 S.W.2d 805, 808 (Tex. App.CHouston [14th Dist.] 1998, no pet.).  To date, no explanation has been filed.

On April 4, 2007, appellee filed a motion to dismiss the appeal because the notice of appeal was filed late and appellant failed to file a motion for extension of time.  Appellant filed no response to the motion.

No clerk=s record has been filed.  Therefore, we are unable to ascertain whether the information provided to the court concerning the filing dates is accurate so that we may properly consider appellee=s jurisdictional challenge.  The clerk responsible for preparing the record in this appeal informed the court appellant did not make arrangements to pay for the record.  On April 27, 2007, notification was transmitted to all parties of the court=s intention to dismiss the appeal for want of prosecution unless, within fifteen days, appellant paid or made arrangements to pay for the record and provided this court with proof of payment.  See Tex. R. App. P. 37.3(b).  Again, appellant filed no response.

Accordingly, the appeal is ordered dismissed for want of prosecution.  Appellee=s motion to dismiss for want of jurisdiction is denied as moot.

PER CURIAM

Judgment rendered and Memorandum Opinion filed May 31, 2007.

Panel consists of Chief Justice Hedges and Justices Hudson and Guzman.