John Bernard Williams, III v. Vincent D. Callahan

• Court: Court of Appeals of Texas
• Decided: July 20, 2005
• Docket: 04-05-00306-CV
• Status: Published

Opinion

MEMORANDUM OPINION

No. 04-05-00306-CV

John Bernard WILLIAMS, III,

Appellant

v.

Vincent D. CALLAHAN,

Appellee

From the 73rd Judicial District Court, Bexar County, Texas

Trial Court No. 2003-CI-14620

Honorable Karen H. Pozza, Judge Presiding

PER CURIAM

Sitting:            Alma L. López, Chief Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed:   July 20, 2005

DISMISSED

            The trial court signed a final judgment on December 7, 2004. Because appellant did not file a motion for new trial, motion to modify the judgment, motion for reinstatement, or request for findings of fact and conclusions of law, the notice of appeal was due to be filed on January 6, 2005. See Tex. R. App. P. 26.1(a). A motion for extension of time to file the notice of appeal was due on January 21, 2005. See Tex. R. App. P. 26.3. Although appellant filed a notice of appeal within the fifteen-day grace period allowed by Rule 26.3, he did not file a motion for extension of time.

            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). 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).

            On May 25, 2005, this court ordered appellant to file a response by June 9, 2005, presenting a reasonable explanation for failing to file the notice of appeal in a timely manner. Our order stated that if appellant failed to respond within the time provided, the appeal would be dismissed. See Tex. R. App. P. 42.3(c). On June 20, 2005, the court extended the deadline for filing the response to June 24, 2005. No response has been filed. Accordingly, the appeal is dismissed. See Tex. R. App. P. 42.3(c); see also Verburgt, 959 S.W.2d at 617.