Guetersloh v. Guetersloh (Tex.App. - Houston [14th Dist.] Sep. 17, 2009)(per curiam)
untimely notice of appeal)
DISMISSED 9/17: Per Curiam    
Before Justices Brock Yates, Frost and Brown  
14-09-00314-CV Michael Fred Guetersloh, Jr. v. James Graig Guetersloh   
Appeal from
151st District Court of Harris County


This is an attempted appeal from a judgment signed November 13, 2008.  A partial summary
judgment was signed September 5, 2008, and a motion for new trial was filed October 1, 2008.  On
November 13, 2008, the trial court signed an order of dismissal and severance, making the
September 5, 2008 judgment final and appealable.  

Appellant did not file his notice of appeal until April 7, 2009.

When appellant has filed a timely motion for new trial, the notice of appeal must be filed within
ninety days after the date the judgment is signed.  See Tex. R. App. P. 26.1(a). 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, 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 (Tex. 1997) (construing the predecessor to rule
26).  Appellant’s notice of appeal was not filed within the fifteen-day period provided by rule 26.3.

On August 25, 2009, appellee filed a motion to dismiss for want of jurisdiction because appellant’s
notice of appeal was untimely.  Appellee further requested sanctions against appellant for filing a
frivolous appeal.  See Tex. R. App. P. 45.  Appellee’s motion to dismiss for want of jurisdiction is
granted; his motion for sanctions is denied.

Accordingly, the appeal is dismissed for want of jurisdiction.

Panel consists of Justices Yates, Frost, and Brown.