Emily Elizabeth Robin, Individually and As Next Friend of Jessica Easley v. Walmart Stores, Inc.--Appeal from 149th District Court of Brazoria County

Dismissed and Opinion filed January 30, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00944-CV

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EMILY ELIZABETH ROBIN, Individually and As Next Friend of JESSICA EASLEY, Appellant

V.

WAL-MART STORES, INC., Appellee

On Appeal from the 149th District Court

Brazoria County, Texas

Trial Court Cause No. 5743*RM98

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 May 14, 2002. Appellant filed a motion for new trial on June 13, 2002. Appellant=s notice of appeal was filed September 3, 2002.

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 December 10, 2002, 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.

On January 9, 2003, appellee filed a motion to dismiss, claiming that the appeal should be dismissed for failure to timely file a notice of appeal and for failing to make financial arrangements to pay for the reporter=s record. Appellant filed no response to appellee=s motion.

We need not address the reporter=s record because we have no jurisdiction over this appeal. We grant appellee=s motion as it concerns jurisdiction.

Accordingly, the appeal is ordered dismissed.

PER CURIAM

Judgment rendered and Opinion filed January 30, 2003.

Panel consists of Justices Edelman, Seymore, and Guzman.