Opinion
No. 14-07-00836-CV
Opinion filed January 17, 2008.
On Appeal from the 55th District Court, Harris County, Texas, Trial Court Cause No. 2006-66135.
Panel consists of Justices YATES, FOWLER, and GUZMAN.
MEMORANDUM OPINION
This is an attempted appeal from a judgment signed May 21, 2007. On June 6, 2007, appellee filed a counterclaim against appellee, Shaun Wymes. Appellant filed a motion for new trial on June 14, 2007. On September 21, 2007, the trial court issued an order, stating that the judgment of May 21, 2007, was a final judgment, that the counterclaim was untimely as filed after judgment issued, and that the motion for new trial was overruled by operation of law on August 4, 2007. Appellant's notice of appeal was filed on October 3, 2007.
When appellant has 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, the notice of appeal must be filed within ninety days after the date the judgment is signed. See TEX. R. APP. P. 26.1(a).
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 (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 TEX. R. APP. P. 26.3, 10.5(b)(1)(C); Verburgt, 959 S.W.2d at 617-18. Appellant's notice of appeal was not filed within the fifteen-day period provided by rule 26.3
On October 15, 2007, appellee filed a motion to dismiss the appeal for lack of jurisdiction. On October 25, 2007, appellants filed a response. The clerk's record was filed on December 14, 2007. Appellants response to the motion to dismiss does not establish that this court has jurisdiction. The judgment of May 21, 2007, disposed of all pending claims and parties and was a final judgment. Because the notice of appeal was not timely filed, we must dismiss the appeal. The motion to dismiss is granted.
Accordingly, the appeal is ordered dismissed.