




Dismissed and Memorandum Opinion filed November 16, 2006







Dismissed
and Memorandum Opinion filed November 16, 2006.
 
In The
 
Fourteenth Court of
Appeals
____________
 
NO. 14-06-00707-CV
____________
 
AMIR AHMAD,
Appellant
 
V.
 
WASHINGTON MUTUAL,
Appellee
 

 
On Appeal from the 269th District
Court
Harris County, Texas
Trial Court Cause No.
2005-81746
 

 
M E M O R
A N D U M  O P I N I O N
This
appeal is from a judgment signed May 12, 2006.  The clerk=s record was filed
on October 30, 2006.  The clerk=s record reveals that appellant=s motion for new
trial was filed untimely on June 16, 2006.  Appellant=s notice of appeal
was filed on August 14, 2006. 




The notice of appeal must be filed within thirty days after
the judgment is signed when appellant has not filed a timely motion for new
trial, motion to modify the judgment, motion to reinstate, or request for
findings of fact and conclusion of law.  See Tex. R. App. P. 26.1.  Appellant claims here and claimed in
the trial court that he deposited the motion for new trial in the mail on June
9, 2006.  Accordingly, appellant argued that application of the mailbox rule
would result in a finding that the motion for new trial was timely filed. 
However, the clerk=s record shows that appellee filed in the
trial court a motion to strike the motion for new trial and attached a copy of
the envelope in which appellant had mailed the motion for new trial, which
reveals a postmark of June 14, 2006.  The trial court held a hearing and, on
July 27, 2006, signed an order, finding that appellant did not sign the motion
for new trial, but had a relative who was not licensed as an attorney and not
qualified to act as an attorney sign the motion, and that the motion for new
trial was not timely filed.  Accordingly, the trial court struck appellant=s motion for new
trial. 
The notice of appeal filed on August 14, 2006, 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 9 (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 24, 2006, appellee filed a motion to dismiss,
asserting that appellant=s notice of appeal was untimely because
the motion for new trial had been stricken.  Appellant filed a response,
claiming that he had mailed the motion for new trial before the deadline and
that the mailbox rule should apply.  On November 6, 2006, appellant filed a
motion for extension of time to file the notice of appeal, again arguing for
application of the mailbox rule to the filing of the motion for new trial. 
Because the trial court has stricken the motion for new trial, we deny
appellant=s motion to extend time to file the notice of appeal
and we grant appellee=s motion to dismiss. 
Accordingly,
the appeal is ordered dismissed.
PER
CURIAM
 
Judgment rendered and Memorandum Opinion filed
November 16, 2006.
Panel consists of Justices Anderson, Hudson, and
Guzman.

