Appeal from the 164th District Court Harris County, Texas
Trial Court Case No. 2015-36057
consists of Justices Keyes, Higley, and Lloyd.
Raymond Jennings, attempted to appeal from the trial
court's final summary judgment, signed on March 28, 2016,
by filing a notice of restricted appeal on September 30,
2016. Appellee, Fairmont Park Homes Association, Inc.
("Fairmont"), filed a motion to dismiss for want of
jurisdiction. We agree with Fairmont, grant the motion, and
dismiss this appeal for want of jurisdiction.
a notice of appeal is due within thirty days after the final
judgment is signed. See Tex. R. App. P. 26.1. The
deadline to file a notice of appeal is extended to ninety
days after the date the judgment is signed if, within thirty
days after the judgment is signed, any party timely files a
motion for new trial, motion to modify the judgment, motion
to reinstate, or, under certain circumstances, a request for
findings of fact and conclusions of law. See id.
26.1(a); Tex.R.Civ.P. 329b(a), (g). The time to file a notice
of appeal may also be extended if, within fifteen days after
the deadline to file the notice of appeal, a party properly
files a motion for extension. See Tex. R. App. P.
10.5(b), 26.3. 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 extension period provided by rule
26.3. See id. 26.1, 26.3; Verburgt v.
Dorner, 959 S.W.2d 615, 617-18 (Tex. 1997).
qualify for a restricted appeal, an appellant must establish
that: (1) he filed the notice of restricted appeal within six
months after the judgment or order appealed from was signed;
(2) he was a party to the underlying suit; (3) he did not
timely file a post-judgment motion or request for findings of
fact and conclusions of law, or notice of appeal; (4) he did
not participate, either in person or through counsel, in the
hearing that resulted in the judgment complained of; and (5)
the trial court erred and the error is apparent from the face
of the record. See Bassie v. Citibank (S. Dakota)
N.A., No. 01-05-00943-CV, 2006 WL 181514, at *1 (Tex.
App.-Houston [1st Dist.] Jan. 26, 2006, no pet.) (per curiam)
(mem. op.) (citing, inter alia, Tex.R.App.P. 30,
October 17, 2016, Fairmont filed this motion to dismiss for
want of jurisdiction, contending that Jennings only failed to
comply with the first requirement because his September 30,
2016 notice of restricted appeal was not filed within six
months after the March 28, 2016 final judgment. Fairmont
further asserts that, though the notice of appeal was filed
within the fifteen-day extension period, no extension request
was timely filed by Jennings. More than ten days has passed
without a response filed by Jennings. See Tex. R.
App. P. 10.3(a).
the trial clerk's letter of assignment indicates that
Jennings did not file a motion for new trial, and
Jennings's notice of restricted appeal, filed by his
counsel, contains the statements required by Rule 25.1, which
appear to comply with the second, third, and fourth
requirements for a restricted appeal. See Tex. R.
App. P. 25.1(d)(7); Bassie, 2006 WL 181514, at *1.
Assuming arguendo that the fifth requirement for a restricted
appeal is met, Jennings's notice of restricted appeal was
due within six months of the March 28, 2016 final judgment,
or by September 28, 2016. See Tex. R. App. P.
26.1(c), 30. While Jennings's notice of restricted
appeal, filed on September 30, 2016, is late, it was filed
within fifteen days of the due date for the notice of
Jennings did not file a motion for extension of time to file
his notice of appeal in this Court, such a motion is
necessarily implied here because his notice of appeal was
filed within the fifteen-day extension period provided by
Rule 26.3. See Tex. R. App. P. 26.1(c), 26.3;
Verburgt, 959 S.W.2d at 617-18; see, e.g.,
Rasolovoahangy v. Aldine Indep. Sch. Dist., No.
14-10-00762-CV, 2010 WL 4923287, at *1 (Tex. App.-Houston
[14th Dist.] Dec. 2, 2010, no pet.) (per curiam) (mem. op.)
(applying implied extension of time under Verburgt
to notice of restricted appeal filed within 15-day extension
period, but dismissing appeal for want of jurisdiction after
appellant failed to respond to notice of intent to dismiss
for want of jurisdiction). While an extension may be implied,
Jennings must, however, still offer a reasonable explanation
for failing to file the notice of appeal in a timely manner.
See Tex. R. App. P. 10.5(b)(1)(C), (b)(2)(A),
26.3(b); Hone v. Hanafin, 104 S.W.3d 884, 886-87
(Tex. 2003); Jones v. City of Houston, 976 S.W.2d
676, 677 (Tex. 1998). Without a timely filed notice of
appeal, this Court lacks jurisdiction over the appeal.
See Tex. R. App. P. 25.1, 26.1.
October 25, 2016, the Clerk of this Court notified Jennings
that this appeal was subject to dismissal for want of
jurisdiction unless he timely responded to this notice and
the motion and showed how this Court had jurisdiction.
See Tex. R. App. P. 42.3(a), (c). Jennings failed to
file a timely response to the notice. Thus, we must dismiss
this appeal for want of jurisdiction. See Tex. R.
App. P. 42.3(a), 43.2(f); see also Rasolovoahangy,
2010 WL 4923287, at *1.
we grant Fairmont's motion and dismiss this appeal for
want of jurisdiction. See Tex. R. App. P. 42.3(a);