Abraham Melawer v. Ocwen Loan Servicing, LLC ( 2012 )

Motion Denied as Moot; Appeal Dismissed and Memorandum Opinion filed June 14,
2012.
In The
Fourteenth Court of Appeals
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NO. 14-12-00417-CV
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ABRAHAM MELAWER, Appellant
V.
OCWEN LOAN SERVICING, Appellee
On Appeal from the 80th District Court
Harris County, Texas
Trial Court Cause No. 2010-41060
MEMORANDUM OPINION
This is an attempted appeal from a judgment signed January 10, 2012. A timely
motion for new trial was filed February 9, 2012. Appellant’s notice of appeal was filed
April 30, 2012.
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 conclusions 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 due April 9, 2012. 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 Texas Rule of Appellate Procedure 26.1, but within the fifteen-day grace
period provided by Texas Rule of Appellate Procedure 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 fifteen-day grace period ended on April 24, 2012.
Appellant’s notice of appeal was not filed within the fifteen-day period provided by Rule
26.3.
Appellant filed a motion to extend time to file his notice of appeal. On June 1,
2012, 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). In his response appellant
erroneously asserts the notice of appeal and the motion for extension of time were filed on
a date within the 15-day grace period -- April 30, 2012. Appellant fails to demonstrate
that this Court has jurisdiction to entertain the appeal.
Accordingly, appellant’s motion is denied as moot and the appeal is ordered
dismissed.
PER CURIAM
Panel consists of Justices Frost, Christopher and McCally.
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