Gregory Wade McLean and/or All Other Occupants of 2135 N FM 2184, Rogers, TX v. DLJ Mortgage Capital Inc., a Delaware Corp., Its Successors and Assigns

NUMBER 13-13-00598-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG
___________________________________________________________

GREGORY WADE MCLEAN AND/OR ALL OTHER
OCCUPANTS OF 2135 N FM 2184, ROGERS, TX, Appellant,

v.

DLJ MORTGAGE CAPITAL INC., A DELAWARE
CORP., ITS SUCCESSORS AND ASSIGNS, Appellee.
____________________________________________________________

On appeal from the County Court at Law No. 3
of Bell County, Texas.
____________________________________________________________

MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Perkes
Memorandum Opinion Per Curiam

Appellant, Gregory Wade McLean and/or all other occupants of 2135 N FM 2184,

Rogers, TX, attempted to perfect an appeal from a judgment entered by the County Court
at Law No. 3 of Bell County, Texas, in cause number 73,980.1 Judgment in this cause

was signed on April 19, 2013. No motion for new trial was filed.

Texas Rule of Appellate Procedure 26.1 provides that an appeal is perfected when

notice of appeal is filed within thirty days after the judgment is signed, unless a motion for

new trial is timely filed. TEX. R. APP. P. 26.1(a)(1). Where a timely motion for new trial

has been filed, notice of appeal shall be filed within ninety days after the judgment is

signed. TEX. R. APP. P. 26.1(a).

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, 619 (1997) (construing the predecessor

to Rule 26). However, appellant must provide a reasonable explanation for the late filing:

it is not enough to simply file a notice of appeal. Id.; Woodard v. Higgins, 140 S.W.3d

462, 462 (Tex. App.--Amarillo 2004, no pet.); In re B.G., 104 S.W.3d 565, 567 (Tex. App.

--Waco 2002, no pet.).

Pursuant to Texas Rule of Appellate Procedure 26.1, appellant’s notice of appeal

was due on May 29, 2013, but was not filed until June 6, 2013. On December 9, 2013,

the Clerk of this Court notified appellant of this defect so that steps could be taken to

correct the defect, if it could be done. Appellant was advised that, if the defect was not

corrected within ten days from the date of receipt of this Court’s letter, the appeal would

1This case is before the Court on transfer from the Third Court of Appeals in Austin pursuant to a docket
equalization order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West
2005).

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be dismissed. To date, no response has been received from appellant providing a

reasonable explanation for the late filing of the notice of appeal.

The Court, having examined and fully considered the documents on file,

appellant’s failure to timely perfect his appeal, and appellant’s failure to respond to this

Court’s notice, is of the opinion that the appeal should be dismissed for want of

jurisdiction. Accordingly, the appeal is hereby DISMISSED FOR WANT OF

JURISDICTION. See TEX. R. APP. P. 42.3(a)(c).

PER CURIAM

Delivered and filed the 20th
day of February, 2014.

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