Gayle Rothenberg, M.D. v. Shahbaz, Mitra--Appeal from 61st District Court of Harris County

Dismissed and Opinion filed October 3, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-02-00876-CV

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GAYLE ROTHENBERG, M. D., Appellant

V.

MITRA SHAHBAZ, Appellee

On Appeal from the 61st District Court

Harris County, Texas

Trial Court Cause No. 99-48731

M E M O R A N D U M O P I N I O N

This is an attempted appeal from the trial court=s order denying appellant=s AMotion for Sanctions and Dismissal with Prejudice of Plaintiff=s Claims@ signed November 16, 2000. Appellant=s notice of appeal was filed August 26, 2002.

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).

In this case, appellant=s notice of appeal was not filed for more than nine months after the order was signed. Thus, appellant=s notice of appeal was not filed timely. A motion for extension of time is necessarily implied when a 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

Accordingly, the appeal is ordered dismissed.

PER CURIAM

Judgment rendered and Opinion filed October 3, 2002.

Panel consists of Justices Yates, Anderson, and Frost.

Do Not Publish C Tex. R. App. P. 47.3(b).