Agbolade Odutayo and Bonita Odutayo v. Steve Wu Individually and as Trustee for the Wu Family Trust

Opinion issued September 3, 2015

In The
Court of Appeals
For The
First District of Texas

NO. 01-15-00641-CV

AGBOLADE ODUTAYO AND BONITA ODUTAYO, Appellants

V.

STEVE WU, INDIVIDUALLY AND AS SPECIAL TRUSTEE FOR WU
FAMILY TRUST, Appellee

On Appeal from the 133rd Judicial District Court
Harris County, Texas
Trial Court Cause No. 2013-30215

MEMORANDUM OPINION

Appellants, Agbolade Odutayo and Bonita Odutayo attempt to appeal from

the trial court’s judgment signed April 13, 2015.
 Generally, a notice of appeal is due within thirty days after the judgment is

signed. See TEX. R. APP. P. 26.1. The deadline to file a notice of appeal is

extended to 90 days after the date the judgment is signed if 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

TEX. R. APP. P. 26.1(a). To be considered timely, a motion for new trial must be

filed within 30 days after the judgment is signed. TEX. R. CIV. P. 329b(a).

The record reflects that the trial court signed the final judgment on April 13,

2015. The record further shows that appellants filed a motion for new trial on May

12, 2015. See id.

Because their motion for new trial was timely filed, appellants’ notice of

appeal was due by July 13, 2015. Appellants did not file a notice of appeal until

July 24, 2015—11 days after the deadline, but within the 15-day extension period

provided by Rule 26.3. See TEX. R. APP. P. 26.1, 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 15-day extension

period. See TEX. R. APP. P. 26.1, 26.3; Verburgt v. Dorner, 959 S.W.2d 615, 617–

18 (Tex. 1997). The appellant must, however, offer a reasonable explanation for

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failing to file the notice of appeal in a timely manner. See TEX. R. APP. P.

10.5(b)(1)(C), 26.3; Jones v. City of Houston, 976 S.W.2d 676, 677 (Tex. 1998).

On July 24, 2015, appellants filed a motion for extension of time to file their

notice of appeal but provided no explanation for why the notice of appeal was

untimely filed. On August 4, 2015, appellee filed a motion to dismiss arguing that

appellants did not comply with rule 10.5 because they failed to offer a reasonable

explanation for the delay. We agree. Because appellant’s notice of appeal was

filed 11 days after the deadline and appellants have offered no explanation for the

delay, the notice of appeal was not timely. Without a timely filed notice of appeal,

this Court lacks jurisdiction over the appeal. See TEX. R. APP. P. 25.1.

Accordingly, we dismiss the appeal for lack of appellate jurisdiction. See

TEX. R. APP. P. 42.3(a), (b); 43.2(f). We dismiss any pending motions as moot.

PER CURIAM

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

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