Opinion
No. 04-05-00217-CV
Delivered and Filed: May 25, 2005.
Appeal from the 218th Judicial District Court, Karnes County, Texas, Trial Court No. 03-10-00170-Cvk, Honorable Donna S. Rayes, Judge Presiding.
Dismissed for Lack of Jurisdiction
Sitting: Karen ANGELINI, Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
The trial court signed a final judgment on February 24, 2005. Appellant Robert Glendinning filed a request for findings of facts on March 17, 2005; however, pursuant to Texas Rule of Civil Procedure 296, such a request was due to be filed on March 16, 2005. As such, Glendinning's request was untimely filed. And, Glendinning did not file a motion for new trial, a motion to modify the judgment, or motion for reinstatement. As such, the notice of appeal was due to be filed on March 28, 2005. See Tex.R.App.P. 26.1(a). A motion for extension of time to file the notice of appeal was due on April 12, 2005. See Tex.R.App.P. 26.3. Glendinning filed his notice of appeal on April 12, 2005. Thus, although Glendinning filed a notice of appeal within the fifteen-day grace period allowed by rule 26.3, he did not file a motion for extension of time.
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 (Tex. 1997) (construing the predecessor to rule 26). However, the appellant must offer a reasonable explanation for failing to file the notice of appeal in a timely manner. See id.; Tex.R.App.P. 26.3, 10.5(b)(1)(C).
We, therefore, ordered Glendinning to file a response presenting a reasonable explanation for failing to file the notice of appeal in a timely manner. Glendinning has now filed a written response, explaining that pursuant to the mailbox rule, his notice of appeal was deemed filed on April 9, 2005. Glendinning's notice of appeal, however, was due to be filed on March 28, 2005. Thus, his notice of appeal was still untimely filed. In our order, we explained that although his notice of appeal was untimely, because it was filed within the fifteen-day grace period provided by rule 26.3, a timely motion for extension of time to file the notice of appeal could be implied, but only if he offered a reasonable explanation for failing to file the notice of appeal in a timely manner. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). In his written response, Glendinning has wholly failed to offer a reasonable explanation for failing to file his notice of appeal in a timely manner. We, therefore, dismiss this appeal for lack of jurisdiction.