Michael Fred Guetersloh, Jr. v. James Graig Guetersloh

• Court: Court of Appeals of Texas
• Decided: September 17, 2009
• Docket: 14-09-00314-CV
• Status: Published

Opinion

Dismissed and Memorandum Opinion filed September 17, 2009.

In The

Fourteenth Court of Appeals

___________________

NO. 14-09-00314-CV

MICHAEL FRED GUETERSLOH, JR., Appellant

V.

JAMES CRAIG GUETERSLOH, Appellee

On Appeal from the 151st District Court

Harris County, Texas

Trial Court Cause No. 2005-27354

MEMORANDUM OPINION

This is an attempted appeal from a judgment signed November 13, 2008.  A partial summary judgment was signed September 5, 2008, and a motion for new trial was filed October 1, 2008.  On November 13, 2008, the trial court signed an order of dismissal and severance, making the September 5, 2008 judgment final and appealable.  Appellant did not file his notice of appeal until April 7, 2009.

When appellant has filed a timely motion for new trial, the notice of appeal must be filed within ninety days after the date the judgment is signed.  See Tex. R. App. P. 26.1(a). 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).  Appellant’s notice of appeal was not filed within the fifteen-day period provided by rule 26.3.

On August 25, 2009, appellee filed a motion to dismiss for want of jurisdiction because appellant’s notice of appeal was untimely.  Appellee further requested sanctions against appellant for filing a frivolous appeal.  See Tex. R. App. P. 45.  Appellee’s motion to dismiss for want of jurisdiction is granted; his motion for sanctions is denied.

Accordingly, the appeal is dismissed for want of jurisdiction.

                                                                                    PER CURIAM

Panel consists of Justices Yates, Frost, and Brown.