Summary
applying implied extension of time under Verburgt to notice of restricted appeal filed within 15-day extension period, but dismissing appeal for want of jurisdiction after appellant failed to respond to notice of intent to dismiss for want of jurisdiction
Summary of this case from Jennings v. Fairmont Park Homes Ass'n, Inc.Opinion
No. 14-10-00762-CV
Memorandum Opinion filed December 2, 2010.
On Appeal from the 281st District Court Harris County, Texas, Trial Court Cause No. 2007-53404.
Panel consists of Justices ANDERSON, FROST, and BROWN.
MEMORANDUM OPINION
This is an attempted appeal from a judgment signed February 3, 2010. No motion for new trial was filed. Appellant's notice of appeal was filed August 9, 2010.
The notice of appeal states this is a restricted appeal. However, the notice of appeal does not "state that the appellant is a party affected by the trial court's judgment but did not participate — either in person or through counsel — in the hearing that resulted in the judgment complained of." Tex. R. App. P. 25.1(d)(7)(A). Furthermore, the notice of appeal is not verified by the appellant. Tex. R. App. P. 25.1(d)(7)(C). Appellant has not filed an amended notice of appeal. Tex. R. App. P. 25.1(f).
Additionally, the notice of appeal is untimely. The judgment was signed February 3, 2010. The notice of appeal was filed August 9, 2010. In a restricted appeal, the notice of appeal must be filed within six months. Appellant's notice of appeal is late, but filed within 15 days of the due date for the notice of appeal. A motion for extension of time is Anecessarily implied" when the perfecting instrument is filed within fifteen days of its due date. Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). Appellant did not file a motion to extend time to file the notice of appeal. While an extension may be implied, appellant is still obligated to come forward with a reasonable explanation to support the late filing. See Miller v. Greenpark Surgery Center Assocs., Ltd., 974 S.W.2d 805, 808 (Tex. App.-Houston [14th] 1998, no pet.).
On October 5, 2010, 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). Appellant filed no response.
Accordingly, the appeal is ordered dismissed.