Kimberly Mitchell v. City of Houston ( 2006 )

Dismissed and Memorandum Opinion filed December 7, 2006

Dismissed and Memorandum Opinion filed December 7, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-06-00785-CV

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KIMBERLY MITCHELL, Appellant

V.

CITY OF HOUSTON, Appellee

On Appeal from the 125th District Court

Harris County, Texas

Trial Court Cause No. 2004-43892

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 November 22, 2004.  Appellant=s notice of appeal was filed on September 8, 2006.

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

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. Appellant=s notice of appeal was not filed within the fifteen-day period provided by rule 26.3

On October 25, 2006, 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 filed no response.

Accordingly, the appeal is ordered dismissed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed December 7, 2006.

Panel consists of Justices Yates, Anderson, and Hudson.