Micaela Rivera v. Santos Enterprises, Inc., Individually and Doing Business as Mariachis Mexican Resturant

• Court: Court of Appeals of Texas
• Decided: February 26, 2009
• Docket: 14-08-01126-CV
• Status: Published

Opinion

Dismissed and Memorandum Opinion filed February 26, 2009

Dismissed and Memorandum Opinion filed February 26, 2009.

In The

Fourteenth Court of Appeals

____________

NO. 14-08-01126-CV

MICAELA RIVERA, Appellant

V.

SANTOS ENTERPRISES, INC., Individually and doing business as

MARIACHIS MEXICAN RESTAURANT, Appellees

On Appeal from the 335th District Court

Washington County, Texas

Trial Court Cause No. 33441

M E M O R A N D U M   O P I N I O N

This is an attempted appeal from a judgment signed September 11, 2008..  Appellant filed an untimely motion for new trial on October 14, 2008, more than 30 days after judgment.  Appellant=s notice of appeal was not filed until December 9, 2008.

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, motion to modify the judgment, motion to reinstate, or request for findings of fact and conclusion of law.  See Tex. R. App. P. 26.1

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).  Because the motion for new trial was untimely and did not extend the time for appellant to file her notice of appeal, appellant=s notice of appeal was not filed within the fifteen-day period provided by rule 26.3

On January 30, 2009, notification was transmitted to all parties of the Court=s intention to dismiss the appeal for want of jurisdiction unless this Court=s jurisdiction was established.  See Tex. R. App. P. 42.3(a).  Appellant filed no response.

Accordingly, the appeal is ordered dismissed.

PER CURIAM

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.