Gabriel B. Darby v. Patriot EMS Service and Waller County EMS--Appeal from 55th District Court of Harris County

State: Texas

Court: Texas Northern District Court

Docket No: 14-09-00361-CV

Case Date: 06/25/2009

Plaintiff: Gabriel B. Darby

Defendant: Patriot EMS Service and Waller County EMS--Appeal from 55th District Court of Harris County

Preview:Dismissed and Memorandum Opinion filed June 25, 2009.

In The

Fourteenth Court of Appeals
____________ NO. 14-09-00361-CV ____________ GABRIEL B. DARBY, Appellant V. PATRIOT EMS SERVICE and WALLER COUNTY EMS, Appellee

On Appeal from the 55th District Court Harris County, Texas Trial Court Cause No. 2008-09026-A

MEMORANDUM OPINION
Appellant filed a notice of appeal on April 16, 2009, attempting to appeal two

dismissal orders signed July 31, 2008 and August 15, 2008, which were made final and severed into cause number 2008-09026-A by order signed September 30, 2008. No motion for new trial, or other post-judgment motion, was timely filed. 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. Therefore, appellant's notice of appeal was due on or before October 30, 2008. Appellant's notice of appeal was not filed timely.1 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). Appellant's notice of appeal was filed far beyond the fifteen-day period provided by Rule 26.3 .On May 21, 2009, notification was transmitted to all parties of the Court's intention to dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a). Appellant filed no response addressing this Court's jurisdiction. Accordingly, the appeal is ordered dismissed.

PER CURIAM

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

We note that appellant's notice of appeal is also untimely to perfect a restricted appeal. See Tex. R. App. P. 26.1(c) (requiring the notice of restricted appeal to be filed within six months). Nor may appellant benefit from the procedures to gain additional time when no timely notice of the trial court's judgment was received. See Tex. R. App. P. 4.2(a) (limiting the extension of time to 90 days after the judgment was signed).

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