Vicki Roy, Individually and D/B/A Vicky Roy Home Health Care, Inc. v. Hewlett-Packard Company

• Court: Court of Appeals of Texas
• Decided: December 20, 2007
• Docket: 13-07-00597-CV
• Status: Published

Opinion

NUMBER 13-07-00597-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

______________________________________________________________

VICKI ROY, INDIVIDUALLY AND

D/B/A VICKI ROY HOME HEALTH CARE, INC., Appellant,

v.

HEWLETT-PACKARD COMPANY, Appellee.

_____________________________________________________________

On Appeal from the 357th District Court

of Cameron County, Texas.

______________________________________________________________

MEMORANDUM OPINION

Before Justices Rodriguez, Benavides, and Vela

Memorandum Opinion Per Curiam

Appellant, Vicki Roy, individually and d/b/a Vicki Roy Home Health Care, Inc., attempted to perfect an appeal from a judgment entered by the 357th District Court of Cameron County, Texas, in cause number 2004-07-3389-E. Judgment in this cause was signed on June 21, 2007. A motion for new trial was filed on July 20, 2007. Pursuant to Texas Rule of Appellate Procedure 26.1, appellant's notice of appeal was due on September 19, 2007, but was not filed until September 20, 2007.

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, 619 (1997) (construing the predecessor to Rule 26). However, appellant must provide a reasonable explanation for the late filing: it is not enough to simply file a notice of appeal. Id.; Woodard v. Higgins, 140 S.W.3d 462, 462 (Tex. App.-Amarillo 2004, no pet.); In re B.G., 104 S.W.3d 565, 567 (Tex. App.-Waco 2002, no pet.).

On October 9, 2007, the Clerk of this Court notified appellant of this defect so that steps could be taken to correct the defect, if it could be done. Appellant was advised that, if the defect was not corrected within ten days from the date of receipt of this Court's letter, the appeal would be dismissed. To date, no response has been received from appellant providing a reasonable explanation for the late filing of the notice of appeal.

The Court, having examined and fully considered the documents on file, appellant's failure to timely perfect her appeal, and appellant's failure to respond to this Court's notice, is of the opinion that the appeal should be dismissed for want of jurisdiction. Accordingly, the appeal is hereby DISMISSED FOR WANT OF JURISDICTION. See Tex. R. App. P. 42.3(a)(c).

PER CURIAM

Memorandum Opinion delivered and

filed this the 20th day of December, 2007.