Opinion
No. 14-07-00580-CV
Opinion filed May 15, 2008.
On Appeal from the 234th District Court Harris County, Texas, Trial Court Cause No. 2004-11952.
Panel consists of Chief Justice HEDGES and Justices FOWLER and BOYCE.
MEMORANDUM OPINION
This is an appeal from a summary judgment signed March 26, 2007. A timely motion for new trial was filed. Appellant's notice of appeal was not filed until July 6, 2007, within 15-days of its due date. See TEX. R. APP. P. 26.1(a). No motion for extension of time to file the notice of appeal was filed. See TEX. R. APP. P. 26.3. 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. The court ordered appellant to file a motion for extension of time to file her notice of appeal. In addition, the court ordered appellant to file an amended notice of appeal to correct the date of the order being appealed. See TEX. R. APP. P. 25.1(d), (f).
The clerk's record was filed on November 26, 2007. It appeared from the clerk's record that the summary judgment being appealed was not final. Therefore, the court abated the appeal and ordered appellant to file a supplemental clerk's record demonstrating that the judgment is final. See TEX. R. APP. P. 27.2 (permitting appellate court to allow appealed order that is not final to be made final and included in a supplemental record). The second supplemental clerk's record filed February 19, 2008, contains an order disposing of the remaining parties to the suit signed February 13, 2008. Accordingly, because the summary judgment was interlocutory, the notice of appeal was premature and is deemed filed on February 13, 2008. See TEX. R. APP. P. 27.1(a) (stating premature notice of appeal is deemed filed on dat of, abut after, event that begins period for perfecting appeal). To date, no amended notice of appeal, motion, or other response to our order has been filed.
Appellant's brief was due March 21, 2008, but it has not been filed. On April 3, 2008, this Court issued an order stating that unless appellant submitted her brief, together with a motion reasonably explaining why the brief was late, on or before April 21, 2008, the court would dismiss the appeal for want of prosecution. See TEX. R. APP. P. 42.3(b). Appellant filed no response.
Accordingly, the appeal is ordered dismissed.