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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