Jesse Herrera v. Antonio Aninao

• Court: Court of Appeals of Texas
• Decided: December 22, 2005
• Docket: 14-05-01142-CV
• Status: Published

Opinion

Dismissed and Memorandum Opinion filed December 22, 2005

Dismissed and Memorandum Opinion filed December 22, 2005.

In The

Fourteenth Court of Appeals

____________

NO. 14-05-01142-CV

JESSE HERRERA, Appellant

V.

ANTONIO ANINAO, Appellee

____________________________________________________

On Appeal from the 165th District Court

Harris County, Texas

Trial Court Cause No. 04-21542

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 granting summary judgment, signed July 19, 2005.  No post-judgment motion, other than a request for findings of fact and conclusions of law was filed.  Appellant=s notice of appeal was filed on November 4, 2005.

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, or other post-judgment motion that extends appellate deadlines.  See Tex. R. App. P. 26.1.  Although appellant filed a request for findings of fact and conclusions of law, a request for findings and conclusions following summary judgment does not extend appellate deadlines.  IKB Industries (Nigeria) Ltd. v. Pro‑Line Corp., 938 S.W.2d 440, 442 (Tex. 1997); Linwood v. NCNB Texas, 885 S.W.2d 102, 103 (Tex. 1994). 

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 December 1, 2005, 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).  On December 2, 2005, appellee filed a motion to dismiss, claiming that the notice of appeal was untimely filed.  On December 6, 2005, appellant filed a response to our notification of intent to dismiss.  Because appellant argues that the request for findings and conclusions extended the deadline, appellant=s response fails to demonstrate that this Court has jurisdiction to entertain the appeal.

Accordingly, the appeal is ordered dismissed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed December 22, 2005.

Panel consists of Justices Hudson, Frost, and Seymore.