Ernestine Jimenez Lewis v. Richard Jack Lewis--Appeal from 245th District Court of Harris County
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Appeal Dismissed and Memorandum Opinion filed March 8, 2011.
In The
Fourteenth Court of Appeals
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NO. 14-08-01038-CV
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ERNESTINE JIMENEZ LEWIS, Appellant
V.
RICHARD JACK LEWIS, Appellee
On Appeal from the 245th District Court
Harris County, Texas
Trial Court Cause No. 2006-52042
MEMORANDUM
OPINION
This is an attempted appeal from a judgment signed August 20, 2008. Appellant=s
notice of appeal was filed October 31, 2008. Appellee filed a motion to dismiss the appeal
for want of jurisdiction because no motion for new trial was timely filed. Appellant
alleged a motion for new trial was filed on September 5, 2008.
We ordered a
supplemental clerk’s record containing the motion for new trial. See Tex. R. App. P.
34.5(c)(1). The district clerk filed a supplemental clerk’s record certifying that no motion
for new trial was filed. We granted appellee’s motion and dismissed the appeal.
On rehearing, appellant reasserted her claim that a motion for new trial was timely
filed on September 5, 2008. We granted appellant’s motion, withdrew our opinion, and
reinstated the appeal. The appeal was then abated for the trial court to determine whether
a motion for new trial was timely filed and, if so, whether it had been lost or destroyed.
See Tex. R. App. P. 34.5(e). The trial court conducted a hearing and entered findings of
fact. The trial court found there was no evidence that a motion for new trial was filed
pursuant to local rules on or about September 5, 2008.
Appellant has also argued that a motion for reconsideration filed July 25, 2008,
should operate as a prematurely filed motion for new trial and extend the appellate
timetables. The July 25, 2008 motion is in the record before this court and is a motion to
reconsider the arbitration award. We do not dispute that a motion to reconsider is the
same as a motion for new trial, or that a motion for new trial filed before the judgment is
signed is a timely motion. However, this appeal is from the trial court’s judgment, not the
arbitrator’s award. The record before this court does not contain any motion challenging
the trial court’s judgment.
Accordingly, the record reflects the notice of appeal was not timely filed. The
judgment was signed on August 20, 2008. No motion for new trial was filed. 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. The
notice of appeal was not filed until October 31, 2008. 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 (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
For these reasons, we order the appeal dismissed.
PER CURIAM
Panel consists of Justices Brown, Christopher, and Jamison.
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