Pius Aboloye, M.D. v. Charles Rockwood, M.D. and University Hospital, San Antonio--Appeal from 224th Judicial District Court of Bexar County

No. 04-00-00870-CV
Pius ABOLOYE, M.D.,
Appellant
v.
Charles ROCKWOOD, M.D. and University Hospital, San Antonio,
Appellees

From the 224th Judicial District Court, Bexar County, Texas
Trial Court No. 2000-CI-01127
Honorable Solomon Casseb, Jr., Judge Presiding

PER CURIAM

Sitting: Phil Hardberger, Chief Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: February 21, 2001

DISMISSED FOR LACK OF JURISDICTION

Pius Aboloye, M.D. appeals a judgment signed August 9, 2000. A motion for new trial or a notice of appeal was thus due September 8, 2000. See See Tex. R. Civ. P. 329b(g); Tex. R. App. P. 26.1(a). The clerk's record contains a motion for new trial bearing a file stamp dated September 11, 2000, but the record does not indicate whether Aboloye timely filed the motion by mail. See Tex. R. Civ. P. 5. Assuming, without deciding, that the motion for new trial was timely filed, Aboloye's notice of appeal was due November 7, 2000, or a motion for extension of time to file the notice of appeal was due fifteen days later on November 22, 2000. See Tex. R. App. P. 26.1, 26.3. Aboloye did not file a notice of appeal until December 21, 2000 and did not file a motion for extension of time to file the notice of appeal.

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, 615 (1997) (construing the predecessor to Rule 26). But "once the period for granting a motion for extension of time under Rule [26.3] has passed, a party can no longer invoke the appellate court's jurisdiction." Id.

Appellees filed motions to dismiss for lack of jurisdiction and, on January 9, 2001, we ordered Aboloye to show cause, no later than January 23, 2001, why this appeal should not be dismissed for lack of jurisdiction. We advised Aboloye the appeal would be dismissed if he failed to satisfactorily respond within the time provided. See Tex. R. App. P. 42.3(a), (c). At appellant's request, we extended the deadline for responding to February 2, 2001. Aboloye has not responded to our order. Accordingly, we grant the appellees' motions and dismiss this appeal for lack of jurisdiction.

PER CURIAM

DO NOT PUBLISH