Gatesco Q.M., LTD. D/B/A Quail Meadows Apartments, a Texas Limited Partnership v. City of Houston and Bill White Individually

• Court: Court of Appeals of Texas
• Decided: December 30, 2008
• Docket: 14-07-00714-CV
• Status: Published

Opinion

Dismissed and Memorandum Opinion filed December 30, 2008

Dismissed and Memorandum Opinion filed December 30, 2008.

In The

Fourteenth Court of Appeals

____________

NO. 14-07-00714-CV

GATESCO Q.M., LTD. D/B/A QUAIL MEADOWS APARTMENTS, LTD., Appellant

V.

CITY OF HOUSTON AND BILL WHITE, INDIVIDUALLY, Appellees

On Appeal from the 133rd District Court

Harris County, Texas

Trial Court Cause No. 2007-00576

M E M O R A N D U M   O P I N I O N

This is an attempted appeal from an order signed June 1, 2007. The record reflects the notice of appeal was not timely filed.

This attempted appeal is an interlocutory appeal^[1] from an order granting a plea to the jurisdiction by a governmental unit.  Tex. Civ. Prac. & Rem. Code ' 51.014.  Pursuant to Tex. R. App. P. 28.1, an appeal from an interlocutory order is accelerated and a motion for new trial will not extend the time to perfect the appeal.  Accordingly, appellant=s notice of appeal was due within twenty days of June 1, 2007, the day the order was signed.  Tex. R. App. P. 26.1(b).  The notice of appeal was filed August 24, 2007.

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 (Tex. 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 November 10, 2008, 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 no response.

Accordingly, the appeal is ordered dismissed.

PER CURIAM

Panel consists of Justices Anderson, Frost, and Hudson^[2].

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^[1]  The record reflects this is not a final judgment since Bill White remains a defendant in the case below.

^[2]  Senior Justice J. Harvey Hudson sitting by assignment.