Bell Bottom Foundation Company v. Joann Romero ( 2005 )

Dismissed and Memorandum Opinion filed September 1, 2005

Dismissed and Memorandum Opinion filed September 1, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-05-00623-CV

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BELL BOTTOM FOUNDATION COMPANY, Appellant

V.

JO ANN ROMERO, Appellee

On Appeal from the 149th District Court

Brazoria County, Texas

Trial Court Cause No. 18868*RM02

M E M O R A N D U M   O P I N I O N

This is an appeal from a judgment signed March 15, 2005.  Appellant filed a timely motion for new trial.  The notice of appeal was due June 13, 2005.  See Tex. R. App. P. 26.1.  Appellant, however, filed her notice of appeal on June 16, 2005, a date within 15 days of the due date for the notice of appeal.  See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (holding that a motion for extension of time is Anecessarily implied@ when the perfecting instrument is filed within fifteen days of its due date).

Appellant did not file a proper motion to extend time to file the notice of appeal.  Appellant did file in the trial court a ANotice of Extension to file Appeal,@ and a copy of this document was also filed in this court.  This document does not constitute a motion for extension of time to file the notice of appeal.  Appellee filed a response, asserting that the Notice of Extension is not a proper motion to extend. 

Because an extension may be implied when the notice of appeal is filed within 15 days after the deadline, we issued an order on July 28, 2005, directing appellant to file a proper motion to extend containing a reasonable explanation to support the late filing of the notice of appeal.  See id. We ordered appellant to file this motion for extension on or before 10 days after the date of the order, or the appeal would be dismissed.

Appellant has not filed a proper motion to extend the time to file the notice of appeal.

Accordingly, the appeal is ordered dismissed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed September 1, 2005.

Panel consists of Justices Hudson, Frost, and Seymore.