Kimberly Mitchell v. Kathy Petrilo ( 2006 )

Dismissed and Memorandum Opinion filed November 30, 2006

Dismissed and Memorandum Opinion filed November 30, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-06-00789-CV

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KIMBERLY MITCHELL, Appellant

V.

KATHY PETRILO, ET AL., Appellees

On Appeal from the 125th District Court

Harris County, Texas

Trial Court Cause No. 2003-70335

M E M O R A N D U M   O P I N I O N

This is an attempted appeal from a an agreed order of dismissal, signed August 20, 2004.  No motion for new trial was filed. 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

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, 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).  Appellant filed a response, which did not address jurisdiction.

Accordingly, the appeal is ordered dismissed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed November 30, 2006.

Panel consists of Justices Anderson, Hudson, and Guzman.