Romie Neal v. Seyed M. Hejazi and Seyed P. Hajazi ( 2012 )

Opinion issued December 13, 2012
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00885-CV
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ROMIE NEAL, Appellant
v.
SEYED J. HEJAZI AND SEYED P. HEJAZI, Appellees
On Appeal from the 61st District Court
Harris County, Texas
Trial Court Cause No. 2010-30221
MEMORANDUM OPINION
Appellant, Romie Neal, attempts to appeal from the trial court’s judgment
signed June 8, 2012. Appellant timely filed a motion for new trial on July 3, 2012.
See TEX. R. CIV. P. 329b(a). Appellant’s notice of appeal, which was filed
September 17, 2012, is untimely. We dismiss.
When, as here, an appellant has timely filed a motion for new trial, the
appellant’s notice of appeal must be filed within ninety days after the date the
judgment was signed. See TEX. R. APP. P. 26.1(a). We may extend the time to file
the notice of appeal if, within 15 days after the deadline to file the notice of appeal,
the party properly files a motion for extension. See TEX. R. APP. P. 10.5(b), 26.3.
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 15-day extension period provided by Rule 26.3. See TEX. R. APP. P. 26.1, 26.3;
Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). The appellant must,
however, offer a reasonable explanation for failing to file the notice of appeal in a
timely manner. See TEX. R. APP. P. 10.5(b)(1)(C), 26.3; Jones v. City of Houston,
976 S.W.2d 676, 677 (Tex. 1998).
Ninety days from June 8, 2012 was September 6, 2012. Appellant filed his
notice of appeal on September 17, 2012. Therefore, the notice of appeal was filed
beyond the time allowed by Rule 26.1, but within the 15-day extension period
provided by Rule 26.3. See TEX. R. APP. P. 26.1, 26.3. As such, a motion for
extension of time may be implied. See Verburgt, 959 S.W.2d at 617. Appellant
did not, however, offer an explanation for failing to timely file the notice of appeal.
See Jones, 976 S.W.2d at 677. On September 28, 2012, we notified appellant that
this appeal was subject to dismissal for want of jurisdiction if appellant did not
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provide a reasonable explanation for the untimely filing of the notice of appeal
within 10 days of the date of the notice. See TEX. R. APP. P. 42.3(a). After being
notified that this appeal was subject to dismissal, appellant did not adequately
respond. We notified appellant on November 7, 2012 that the appeal was subject
to dismissal at any time because appellant had not responded to the September 28,
2012 notice. After being notified a second time that this appeal was subject to
dismissal, appellant did not adequately respond.
Accordingly, we dismiss the appeal for want of jurisdiction. We dismiss any
other pending motions as moot.
PER CURIAM
Panel consists of Justices Keyes, Massengale, and Brown.
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