Jose Rosales and Sabrina Rosales v. Jeffrey Gallagher and Susan Gallagher

• Court: Court of Appeals of Texas
• Decided: November 13, 2012
• Docket: 05-12-01059-CV
• Status: Published

Opinion

DISMISS; Opinion Filed November 13, 2012.

in The (!nairt uf Apprat FiftIi Oitrtrt nf Lrxa at Ja1ta No. 05-12-OI059 7 -C

JOSE ROSALES AND SABRINA ROSALES, Appellants

V.

JEFFREY GALLAGhER AND SUSAN GALLAGHER, Appellees

On Appeal from the 380th Judicial District Court Collin County, Texas Trial Court Cause No. 380-02266-2011

MEMORANDUM OPINION Before Justices Moseley, Fillmore, and Myers Opinion By Justice Moseley

Our jurisdiction is fundamental and, subject to a few mostly statutory exceptions, invoked

only upon the timely filing of a notice of appeal from a final judgment. TEX. R. App. . 25.1(b),

26.1; Lehmann i’. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); K& Sinterests, Inc. v. Tex. Am.

Bank/Dallas, 749 S.W.2d 887, 890 (Tex .App.—--Dallas 1988, writ denied). The judgment Jose and

Sabrina Rosales challenge in this appeal was signed April 27, 2012. The Rosaleses timely filed a

motion for new trial, making their notice of appeal due July 26, 2012. or with an extension motion,

August 10, 2012. See TEX. R. App. P.26.1(a), 26.3. The notice of appeal was filed July 31, 2012,

hut without an extension motion.

Because a motion for extension of time is necessarily implied when an appellant acting in good faith flies a notice ofappeal within fifteen days ofthe date it is due. we directed the Rosaleses,

by letter dated October 12. 2012. to file an extension motion that complied with rule of appellate

procedure 10.5(b). See T€x. R. APP. P. i 0.5(b), 26.3(b); Verburgt v. Dorner, 959 S.W.2d 615,617

(1997). We directed the Rosaleses to file the motion by October 22.2012 and cautioned them that

the appeal would be dismissed without further notice if they filled to comply. See Id. 42.3(a). To

date, the Rosaleses have not filed an extension motion or otherwise communicated with the Court.

Accordingly, we dismiss the appeal. See Id.

121059F.P05

—2— !nitrt of 41pra1 FiftI! 1iitrirt of ixai at 1a11ai

JUDGMENT JOSE ROSALES AND SAI3RINA Appeal from the 30th Judicial District Court ROSALES, Appellants of Collin County. Texas. (Tr.Ct.No. 380- 02266-2011). No. 05-1 2-01 059-CV Opinion delivered by Justice Moseley. Justices Fillmore and Myers participating. ILFFRI (i&LLAGHER AND SuSAN GALLAGHER, Appellees

In accordance with this Court’s opinion of this date, we DISMiSS the appeal. We ORDER that appellees Jeffrey Gallagher and Susan Gallagher recover their costs, if any. of this appeal from appellants Jose Rosales and Sabrina Rosales.

Judgment cntcrLd Novcmhei 1 3 2012 / / / / II I / i/•!j/i 1/ / / J /L’ JIM MOSELtY JUSTICE