Motion Denied; Appeal Dismissed and Memorandum Opinion filed August 9,
2016.
In The
Fourteenth Court of Appeals
NO. 14-16-00359-CV
DIOGU KALU DIOGU II, Appellant
V.
FORT BEND COUNTY, ET AL, Appellee
On Appeal from the 400th District Court
Fort Bend County, Texas
Trial Court Cause No. 04-DCV-134011
MEMORANDUM OPINION
This is an attempted appeal from a judgment signed by November 12, 2015.
Appellant filed a timely motion for new trial. The notice of appeal must be filed
within 90 days after the judgment is signed when appellant has filed a timely post-
judgment motion. Tex. R. App. P. 26.1(a). Therefore, appellant’s notice of appeal
was due February 10, 2016. The notice of appeal was not filed until May 2, 2016.
Appellant’s notice of appeal was not filed timely. 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(a), but within the 15-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 (1997) (construing the predecessor
to Rule 26). Appellant’s notice of appeal was not filed within the 15-day period
provided by Rule 26.3.
On June 22, 2016, 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).
In response, appellant filed a document entitled, “Motion to Retain This Case on
the Docket in Order Set Aside the Lower Court’s Judgment as Void and Dismiss
Appeal on the Merit for Lack of Jurisdiction.” The motion fails to demonstrate that
this court has jurisdiction over this appeal.
Accordingly, appellant’s motion is DENIED and the appeal is
DISMISSED.
PER CURIAM
Panel consists of Justices Jamison, McCally, and Wise.
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