

Dismissed and Memorandum Opinion filed February 24, 2011.
 
 
In The
 
Fourteenth Court of
Appeals
____________
 
NO. 14-10-01150-CV
____________
 
AUSTIN O’TOOLE, JR., Appellant
 
V.
 
MARILYN WILLIAMS LINLEY, Appellee
 

 
On Appeal from the 308th District Court

Harris County, Texas
Trial Court Cause No. 2010-35526
 

 
M E M O R
A N D U M   O P I N I O N
This is an attempted appeal from a dismissal order signed September
3, 2010.  The Harris County District Clerk’s office advised the court that a motion
for new trial was filed November 11, 2010, but no motion for new trial is
included in the clerk’s record.  Appellant=s notice of appeal was filed November
5, 2010.  A second notice of appeal was filed November 19, 2010.  
The record before this court does not contain a timely motion
for new trial.  See Tex. R. Civ. P. 329b(a) (requiring motion for new
trial to be filed within 30 days after the order complained of is signed).  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.  According to the record filed with this court, 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 (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.  See Tex. R. App. P. 26.3.
On February 3, 2011, 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 motion seeking to avoid
dismissal.  In the motion, appellant asserted that he filed a timely motion for
new trial and notice of appeal on or about September 29, 2010, and the court
clerk misplaced them.  He stated that he then filed several documents to
replace the lost filings.  He has not provided this court with a file-stamped
copy of a timely motion for new trial or notice of appeal.  In the absence of a
timely notice of appeal, this court lacks jurisdiction over the appeal.  See
Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 564 (Tex. 2005).  
Accordingly, we deny appellant’s motion and the appeal is
ordered dismissed.
 
PER CURIAM
 
Panel consists of Justices
Brown, Boyce & Jamison.

