Albert C. Sneeden v. Barry G. Porter and Suzanne Porter--Appeal from 29th District Court of Palo Pinto County

Opinion filed September 6, 2007

In The

Eleventh Court of Appeals

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   No. 11-07-00238-CV

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  ALBERT C. SNEEDEN, Appellant

V.

BARRY G. PORTER AND SUZANNE PORTER, Appellees

On Appeal from the 29th District Court

Palo Pinto County, Texas

Trial Court Cause No. C41743

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

Barry G. Porter and Suzanne Porter sued Albert C. Sneeden for damages as a result of Sneeden=s failure to perform under a contract. The trial court signed its nunc pro tunc default judgment on April 18, 2007. Albert C. Sneeden timely filed a motion for new trial that was denied in a written order signed on July 10, 2007. Sneeden then filed a notice of appeal on August 7, 2007. We dismiss the appeal.

Tex. R. App. P. 26.1(a) provides that, when a motion for new trial has been timely filed, the notice of appeal must be filed within ninety days after the date the judgment was signed in order to perfect an appeal. Sneeden filed his notice of appeal 111 days after the date the judgment was signed.

When the clerk=s record was received in this court, the clerk of this court wrote the parties advising them that it appeared an appeal had not been timely perfected and directing Sneeden to respond within ten days showing grounds for continuing the appeal.

In response to our August 14 letter, Sneeden filed a motion for extension of time in which to file his notice of appeal on August 24, 2007. Sneeden contends that he calculated the due date for perfecting his appeal from the date the motion for new trial was overruled.

Pursuant to Tex. R. App. P. 26.3, both the notice of appeal and the motion for extension of time are due to be filed within fifteen days of the original due date under Rule 26.1(a). In Verburgt v. Dorner, 959 S.W.2d 615 (Tex. 1997), the supreme court Aimplied@ that a motion for extension of time had been filed when the actual document that perfected the appeal was filed within the additional fifteen days provided by Rule 26.3 and the appellant established that he had acted in Agood faith.@ In the present case, the notice of appeal was filed outside of the additional fifteen-day limit.

The motion for extension of time is overruled, and the appeal is dismissed for want of jurisdiction.

PER CURIAM

September 6, 2007

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.