Donald R. Laird v. City of Houston--Appeal from 125th District Court of Harris County

Dismissed and Memorandum Opinion filed December 20, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-07-00916-CV

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DONALD R. LAIRD, Appellant

V.

CITY OF HOUSTON, Appellee

On Appeal from the 125th District Court

Harris County, Texas

Trial Court Cause No. 2005-38477

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

This is an attempted appeal from a final judgment signed June 13, 2007. Appellant filed a timely motion for new trial on July 12, 2007. Appellant=s notice of appeal was due on or before September 10, 2007. See Tex. R. App. P. 26.1(a) (requiring a notice of appeal to be filed within 90 days after the judgment is signed when a timely motion for new trial is filed). Appellant=s notice of appeal was not filed until October 24, 2007, however. The clerk=s record was filed on December 7, 2007.

After review of the clerk=s record, we determine that appellant=s notice of appeal was not filed timely. An appellate court may extend the time to file a notice of appeal if the notice of appeal and a motion for extension of time are filed within fifteen days after its due date. Tex. R. App. P. 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 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 (Tex. 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 November 21, 2007, appellee filed a motion to dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a). Appellant filed a response on December 4, 2007, in which he argued that he made a bona fide attempt to appeal when he filed his motion for new trial. See Grand Prairie I.S.D. v. Southern Parts Imports, Inc., 813 S.W.2d 499, 500 (Tex. 1991) (holding that a court of appeals may not dismiss an appeal for filing the wrong instrument without providing an opportunity to amend when appellant has made a timely bona fide attempt to invoke our jurisdiction). Alternatively, appellant requested an extension of time to file his notice of appeal.

Appellant=s response does not demonstrate that this court has jurisdiction over this appeal. A motion for new trial does not constitute a bona fide attempt to appeal. In re K.A.F., 160 S.W.3d 923, 928 (Tex. 2005). In addition, because appellant=s notice of appeal was filed beyond the 15-day grace period in Rule 26.3, we have no authority to grant an extension of time to file the notice of appeal.

Therefore, we are without jurisdiction to consider this appeal. Accordingly, we grant appellee=s motion, and the appeal is ordered dismissed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed December 20, 2007.

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.