Patricia Gavin and James K. Moore v. Mercedes Benz of Houston Greenway

• Court: Court of Appeals of Texas
• Decided: September 29, 2011
• Docket: 14-11-00561-CV
• Status: Published

Opinion

Motion Granted; Appeal Dismissed and Memorandum Opinion filed September 29, 2011.

In The

Fourteenth Court of Appeals ____________

NO. 14-11-00561-CV ____________

PATRICIA GAVIN AND JAMES K MOORE, Appellants

V.

MERCEDES BENZ OF HOUSTON GATEWAY, Appellee

On Appeal from the 152nd District Court Harris County, Texas Trial Court Cause No. 2010-30357

MEMORANDUM OPINION

This is an attempted appeal from a judgment signed April 26, 2011. No motion for new trial was filed. Appellant’s notice of appeal was filed June 28, 2011.

On July 14, 2011, appellee filed a motion to dismiss the appeal on the grounds the notice of appeal was untimely filed. See Tex. R. App. P. 26.1. Appellant filed no response. 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 (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 9, 2011, notification was transmitted to all parties of the court’s intention to dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a). Appellants’ response fails to demonstrate that this Court has jurisdiction to entertain the appeal.

Accordingly, appellee’s motion is granted and the appeal is ordered dismissed.

PER CURIAM

Panel consists of Justices Brown, Boyce, and McCally.