In re Kerry Beal (Tex.App.- Houston [1st Dist.] July 17, 2008) (subst. per curiam op)
(untimely notice of appeal, attempted appeal dismissed)
DISMISSED: Per Curiam
Before Justices Brock Yates, Guzman and Brown
14-07-00530-CV In Re Kerry Beal
Appeal from 295th District Court of Harris County
Trial Court Judge: Tracy Kee Christopher
S U B S T I T U T E 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 March 21, 2007. No timely post-judgment
motions were filed. Appellant;s notice of appeal was filed June 22, 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 (Tex. 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
On December 10, 2007, notification was transmitted to all parties of the Court's intent to dismiss the
appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a). Appellant's response failed to
demonstrate that this Court has jurisdiction to entertain the appeal.
After our original opinion issued on January 24, 2008, dismissing the appeal for lack of jurisdiction,
appellant filed a motion for rehearing. Appellant complains on rehearing that he filed a motion for
new trial and mailed it on May 26, 2007. To be timely, a motion for new trial must be filed within
thirty days after the judgment is signed. See Tex. R. App. P. 26.1. The record shows that
appellant=s motion for new trial, filed on June 4, 2007, was not timely filed.
Appellant also claims the deadline for perfecting his appeal was extended by a request for findings
of fact and conclusions of law. The record indicates appellant's request for findings of fact and
conclusions of law was filed on April 23, 2007. A request for findings and conclusions only extends
the date for perfection if findings and conclusions are required by the rules of civil procedure or
could properly be considered by the appellate court. Tex. R. App. P. 26.1(a)(4). Under the rules of
civil procedure, findings and conclusions are required when a party requests them within twenty
days after judgment is signed in a case tried without a jury. Tex. R. Civ. P. 296. Appellant's request
was not filed within twenty days after the signing of the judgment.
Appellant claims in his motion for new trial that he mailed his motion for new trial on May 26, 2007,
and his request for findings on April 5, 2007. Even if these documents were mailed on the dates
appellant claims, the motion and request would be considered untimely because neither was
received in time to fit within the parameters of the mailbox rule. According to the mailbox rule, a
document received within ten days after the filing deadline is considered timely filed if it was sent to
the proper clerk by U.S. Postal Service. Tex. R. App. P. 9.2(b)(1). Appellant claims his motion for
new trial was mailed on May 26, 2007, but it was due on April 20, 2007. The motion for new trial was
filed on June 4, 2007, a date not within ten days after the filing deadline of April 20, 2007.
Appellant claims he mailed his request for findings and conclusions on April 5, 2007. The request for
findings was not file-stamped until April 23, 2007, but it was due on April 10, 2007 (20 days after the
judgment was signed). Thus, the request was not received within ten days of the filing deadline of
April 10, 2007. Because it was not timely filed, appellant's request for findings of fact and
conclusions of law did not extend the deadline to file the notice of appeal.
Because appellant did not file any timely post-judgment motions, the notice of appeal was due thirty
days after judgment was signed. Appellant filed his notice of appeal on June 22, 2007, ninety-two
days after the judgment was signed.
Accordingly, the appeal is ordered dismissed.
Judgment rendered and Substitute Memorandum Opinion filed July 17, 2008.
Panel consists of Justices Yates, Guzman, and Brown.