James H. Cathey and Pat Cathey v. Manufacturers Capital, Inc. ( 2005 )

Dismissed and Memorandum Opinion filed December 15, 2005

Dismissed and Memorandum Opinion filed December 15, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-05-01160-CV

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JAMES H. CATHEY and PAT CATHEY, Appellants

V.

MANUFACTURERS CAPITAL, INC., Appellee

On Appeal from the 334th District Court

Harris County, Texas

Trial Court Cause No. 04-06381

M E M O R A N D U M   O P I N I O N

This is an attempted appeal from a judgment, signed July 25, 2005.  Appellants filed a AMotion to Appeal Summary Judgment,@ on August 22, 2005, which the trial court construed to be a motion for new trial. Thus, the motion for new trial was timely filed.  Appellant=s notice of appeal was filed on November 9, 2005.  On the same date, appellants filed a motion for extension of time to file the notice of appeal.

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 9 (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.  Appellants= notice of appeal was not filed within the fifteen-day period provided by Rule 26.3

On December 1, 2005, notification was transmitted to all parties of the Court=s intent to dismiss the appeal for want of jurisdiction.  See Tex. R. App. P. 42.3(a).  Appellants filed a response; however, the response fails to demonstrate that this Court has jurisdiction to entertain the appeal.

Accordingly, the appeal is ordered dismissed for lack of jurisdiction

PER CURIAM

Judgment rendered and Memorandum Opinion filed December 15, 2005.

Panel consists of Justices Hudson, Frost, and Seymore.