Amir Ahmad v. Washington Mutual--Appeal from 269th District Court of Harris County

Dismissed and Memorandum Opinion filed November 16, 2006.

In The

Fourteenth Court of Appeals

____________

NO. 14-06-00707-CV

____________

AMIR AHMAD, Appellant

V.

WASHINGTON MUTUAL, Appellee

On Appeal from the 269th District Court

Harris County, Texas

Trial Court Cause No. 2005-81746

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

This appeal is from a judgment signed May 12, 2006. The clerk=s record was filed on October 30, 2006. The clerk=s record reveals that appellant=s motion for new trial was filed untimely on June 16, 2006. Appellant=s notice of appeal was filed on August 14, 2006.

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. Appellant claims here and claimed in the trial court that he deposited the motion for new trial in the mail on June 9, 2006. Accordingly, appellant argued that application of the mailbox rule would result in a finding that the motion for new trial was timely filed. However, the clerk=s record shows that appellee filed in the trial court a motion to strike the motion for new trial and attached a copy of the envelope in which appellant had mailed the motion for new trial, which reveals a postmark of June 14, 2006. The trial court held a hearing and, on July 27, 2006, signed an order, finding that appellant did not sign the motion for new trial, but had a relative who was not licensed as an attorney and not qualified to act as an attorney sign the motion, and that the motion for new trial was not timely filed. Accordingly, the trial court struck appellant=s motion for new trial.

The notice of appeal filed on August 14, 2006, was not filed timely. 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 August 24, 2006, appellee filed a motion to dismiss, asserting that appellant=s notice of appeal was untimely because the motion for new trial had been stricken. Appellant filed a response, claiming that he had mailed the motion for new trial before the deadline and that the mailbox rule should apply. On November 6, 2006, appellant filed a motion for extension of time to file the notice of appeal, again arguing for application of the mailbox rule to the filing of the motion for new trial. Because the trial court has stricken the motion for new trial, we deny appellant=s motion to extend time to file the notice of appeal and we grant appellee=s motion to dismiss.

Accordingly, the appeal is ordered dismissed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed November 16, 2006.

Panel consists of Justices Anderson, Hudson, and Guzman.