Leo Iwuji, Christina Iwuji, and Juliana Iwuji v. Airline Center, Inc. ( 2007 )

Dismissed and Memorandum Opinion filed April 5, 2007

Dismissed and Memorandum Opinion filed April 5, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-07-00018-CV

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LEO IWUJI, CRISTINA IWUJI, AND JULIANA IWUJI, Appellants

V.

AIRLINE CENTER, INC., Appellee

On Appeal from County Civil Court at Law No. 4

Harris County, Texas

Trial Court Cause No. 826,460

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 September 15, 2007.  The record reflects appellant filed an untimely motion for new trial on November 30, 2006.  The notice of appeal was due October 16, 2006.  See Tex. R. App. P. 26.1. Appellant=s notice of appeal was filed January 2, 2007.

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

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

We note that in their docketing statement appellants claim they filed a motion for new trial on October 16, 2006.  That motion would be timely, but the notice of appeal still would be late.  If a timely motion for new trial were filed, the notice of appeal would have been due December 14, 2006.  The notice of appeal was filed January 2, 2007, a date that is not within fifteen days of December 14, 2006.  Id.  Accordingly, with or without a timely motion for new trial, the notice of appeal was not timely filed.

On February 12 , 2007, 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).  Appellant did not file a response.^[1] The record conclusively demonstrates that this court lacks jurisdiction over this appeal so any response would be futile.

This court may dismiss the appeal on its own initiative for want of jurisdiction.  Because the record conclusively demonstrates this court does not have jurisdiction to entertain the appeal, the appeal is ordered dismissed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed April 5, 2007.

Panel consists of Justices Frost, Seymore, and Guzman.

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^[1]  Appellants were granted a thirty-day extension of time to file a response, until March 22, 2007.  On March 22, 2007, appellants sought another extension, for sixty days.  That extension was denied.