Romie Neal v. Seyed M. Hejazi and Seyed P. Hajazi

Opinion

Opinion issued December 13, 2012

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-12-00885-CV ——————————— ROMIE NEAL, Appellant v. SEYED J. HEJAZI AND SEYED P. HEJAZI, Appellees

On Appeal from the 61st District Court Harris County, Texas Trial Court Cause No. 2010-30221

MEMORANDUM OPINION

Appellant, Romie Neal, attempts to appeal from the trial court’s judgment

signed June 8, 2012. Appellant timely filed a motion for new trial on July 3, 2012.

See TEX. R. CIV. P. 329b(a). Appellant’s notice of appeal, which was filed

September 17, 2012, is untimely. We dismiss. When, as here, an appellant has timely filed a motion for new trial, the

appellant’s notice of appeal must be filed within ninety days after the date the

judgment was signed. See TEX. R. APP. P. 26.1(a). We may extend the time to file

the notice of appeal if, within 15 days after the deadline to file the notice of appeal,

the party properly files a motion for extension. See TEX. R. APP. P. 10.5(b), 26.3.

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 15-day extension period provided by Rule 26.3. See TEX. R. APP. P. 26.1, 26.3;

Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). The appellant must,

however, offer a reasonable explanation for failing to file the notice of appeal in a

timely manner. See TEX. R. APP. P. 10.5(b)(1)(C), 26.3; Jones v. City of Houston,

976 S.W.2d 676, 677 (Tex. 1998).

Ninety days from June 8, 2012 was September 6, 2012. Appellant filed his

notice of appeal on September 17, 2012. Therefore, the notice of appeal was filed

beyond the time allowed by Rule 26.1, but within the 15-day extension period

provided by Rule 26.3. See TEX. R. APP. P. 26.1, 26.3. As such, a motion for

extension of time may be implied. See Verburgt, 959 S.W.2d at 617. Appellant

did not, however, offer an explanation for failing to timely file the notice of appeal.

See Jones, 976 S.W.2d at 677. On September 28, 2012, we notified appellant that

this appeal was subject to dismissal for want of jurisdiction if appellant did not

2 provide a reasonable explanation for the untimely filing of the notice of appeal

within 10 days of the date of the notice. See TEX. R. APP. P. 42.3(a). After being

notified that this appeal was subject to dismissal, appellant did not adequately

respond. We notified appellant on November 7, 2012 that the appeal was subject

to dismissal at any time because appellant had not responded to the September 28,

2012 notice. After being notified a second time that this appeal was subject to

dismissal, appellant did not adequately respond.

Accordingly, we dismiss the appeal for want of jurisdiction. We dismiss any

other pending motions as moot.

PER CURIAM

Panel consists of Justices Keyes, Massengale, and Brown.