Michael Kennedy v. Cynthia Jordan and Michael Stephen--Appeal from 23rd District Court of Brazoria County

Dismissed and Memorandum Opinion filed April 21, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-05-00049-CV

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MICHAEL KENNEDY, Appellant

V.

CYNTHIA JORDAN and MICHAEL STEPHEN, Appellees

On Appeal from the 23rd District Court

Brazoria County, Texas

Trial Court Cause No. 28760

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

This is an attempted appeal from an order of dismissal signed September 21, 2004. No motion for new trial was filed. Appellant=s notice of appeal was not filed until November 19, 2004. The record contains a letter from appellant stating he had sent an earlier notice of appeal to the district clerk=s office, but it was not filed.

Appellant=s notice of appeal was not filed timely. 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.

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). Appellant=s notice of appeal was not filed within the fifteen-day period provided by rule 26.3

On March 17, 2005, notification was transmitted to all parties of the court=s intention to dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a). In our notice, we notified appellant that the Brazoria County District Clerk=s office had informed this court that the notice of appeal filed on November 19, 2004, was the first notice of appeal received in that office. Appellant filed no response to our dismissal notice.

Accordingly, the appeal is ordered dismissed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed April 21, 2005.

Panel consists of Chief Justice Hedges and Justices Fowler and Frost.