jeannine-cherqui-albert-cherqui-alice-cherqui-and-charles-cherqui-v-john ( 2002 )

Dismissed and Opinion filed July 3, 2002

Dismissed and Opinion filed July 3, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-02-00466-CV

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JEANNINE CHERQUI, ALBERT CHERQUI, ALICE CHERQUI and CHARLES CHERQUI, Appellants

V.

JOHN BERRY, M.D., RANDOLPH EVANS, M.D., ANNETTE HOWARD, M.D., and MARY ELLEN VANDERLICK, M.D., Appellees

On Appeal from the 129th District Court

Harris County, Texas

Trial Court Cause No. 97-30229

M E M O R A N D U M  O P I N I O N

This is an attempted appeal from a final judgment signed January 14, 2002.  Appellants filed a timely motion for new trial.  Appellants= notice of appeal was not filed until May 2, 2002.

An appellate court=s jurisdiction is invoked by the timely filing of a notice of appeal. Tex. R. App. P. 25.1(b).  When an 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.  Tex. R. App. P. 26.1(a).  Appellant=s notice of appeal was filed more than ninety days after the judgment was signed. 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).  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.  Appellants= notice of appeal was not filed within the fifteen-day period provided by rule 26.3, however. 

On June 17, 2002, appellees Annette Howard, M.D. and Mary Ellen Vanderlick, M.D. filed a motion to dismiss the appeal for want of jurisdiction.  See Tex. R. App. P. 42.3(a).  On June 21, 2002, appellees Randolph Evans, M.D. and John Berry, M.D. filed a motion to join the motion to dismiss.  Appellants filed no response to either motion.  The motions are granted.

Accordingly, the appeal is ordered dismissed.

PER CURIAM

Judgment rendered and Opinion filed July 3, 2002.

Panel consists of Chief Justice Brister and Justices Anderson and Frost.

Do Not Publish C Tex. R. App. P. 47.3(b).