Opinion
No. 14-08-01038-CV
Opinion filed July 22, 2010.
On Appeal from the 245th District Court, Harris County, Texas, Trial Court Cause No. 2006-52042.
Panel consists of Justices BROWN, SULLIVAN, and CHRISTOPHER.
MEMORANDUM OPINION
This is an attempted appeal from a judgment signed August 20, 2008. Appellant's notice of appeal was filed October 31, 2008. Appellee has filed a motion to dismiss the appeal for want of jurisdiction because no motion for new trial was timely filed.
This court ordered a supplemental clerk's record containing the motion for new trial purportedly filed on September 5, 2008. See Tex. R. App. P. 34.5(c)(1). The district clerk filed a supplemental clerk's record certifying that no motion for new trial was filed.
In response to notification that the Court would consider dismissal of the appeal on its own motion for want of jurisdiction, appellant filed a motion to supplement the record. As of this date, no supplemental record has been filed.
Appellant asserts a motion for reconsideration was filed. That motion, filed July 25, 2008, is in the record before this court and is a motion to reconsider the arbitration award. We do not dispute that a motion to reconsider is the same as a motion for new trial, or that a motion for new trial filed before the judgment is signed is a timely motion. However, this appeal is from the trial court's judgment, not the arbitrator's award. The record before this court does not contain any motion challenging the trial court's judgment.
Accordingly, the record reflects the notice of appeal was not timely filed. The judgment was signed on August 20, 2008. No motion for new trial was filed. The notice of appeal must be filed within thirty days after the judgment is signed when appellant has not 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. See Tex. R. App. P. 26.1. The notice of appeal was not filed until October 31, 2008. 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 (1997) (construing the predecessor to Rule 26). Appellant's notice of appeal was not filed within the fifteen-day period provided by rule 26.3
For these reasons, we grant appellee's motion and order the appeal dismissed.