Tam Nguyen v. Discover Bank--Appeal from County Court No. 3 of Galveston County

Dismissed and Memorandum Opinion filed August 16, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-07-00519-CV

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TAM NGUYEN, Appellant

V.

DISCOVER BANK, Appellee

On Appeal from County Court No. 3

Galveston County, Texas

Trial Court Cause No. 56,161

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

This is an attempted appeal from a judgment signed February 22, 2007. No motion for new trial was filed. Appellant=s notice of appeal was filed May 3, 2007.

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=s notice of appeal 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). However, the appellant must offer a reasonable explanation for failing to file the notice of appeal in a timely manner. See Tex. R. App. P. 26.3, 10.5(b)(1)(C); Verburgt, 959 S.W.2d at 617-18. Appellant=s notice of appeal was not filed within the fifteen-day period provided by rule 26.3.

However, appellant=s notice of appeal indicated he did not participate in the hearing that resulted in the judgment complained of but does not comply with the requirements of Rule 25.1(d)(7). Tex. R. App. P. 25.1(d)(7). A court of appeals has jurisdiction over an appeal when an appellant files an instrument that is Aa bona fide attempt to invoke appellate court jurisdiction.@ City of San Antonio v. Rodriguez, 828 S.W.2d 417, 418 (Tex. 1992) (per curiam) (holding that notice of appeal filed under the wrong docket number is a bona fide attempt to invoke appellate jurisdiction). An appellant should be given an opportunity to amend a defective perfecting instrument before the court of appeals may dismiss an appeal. See id. at 500. Appellant made a bona fide attempt to invoke our jurisdiction and was granted an opportunity to amend his defective notice of appeal.

On June 28, 2007, appellant was ordered to file an amended notice of appeal with the clerk of this Court on or before July 19, 2007, or the appeal would be dismissed. See Tex. R. App. P. 25.1(f); Tex. R. App. P. 42.3. Appellant filed no response.

Accordingly, the appeal is ordered dismissed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed August 16, 2007.

Panel consists of Chief Justice Hedges, Justices Yates, and Frost.