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dismissing appeal for lack of jurisdiction when the appellant failed to provide a reasonable explanation for failing to file the notice of appeal in a timely manner
Summary of this case from Schmidt Land Servs., Inc. v. AshworthOpinion
No. 04-15-00674-CV
01-27-2016
Edgar MARKWARDT, Appellant v. CITY OF SAN ANTONIO, Appellee
MEMORANDUM OPINION
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 2015-CI-11416
Honorable Peter Sakai, Judge Presiding PER CURIAM Sitting: Marialyn Barnard, Justice Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice DISMISSED FOR WANT OF JURISDICTION
Appellant Edgar Markwardt appeals an order granting a plea to the jurisdiction signed on July 16, 2015. Appellant timely filed a motion that extended the time for perfecting an appeal. See TEX. R. CIV. P. 329b(g); TEX. R. APP. P. 26.1(a). Thus, the notice of appeal was due October 14, 2015, or a motion for extension of time to file the notice of appeal was due fifteen days later on October 29, 2015. See TEX. R. APP. P. 26.1, 26.3. Appellant filed a notice of appeal on October 29, 2015. Although appellant filed this notice of appeal within the fifteen-day grace period allowed by Rule 26.3, he did not file a motion for extension of time to file the notice of appeal. See TEX. R. APP. P. 26.3.
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, 615 (1997). However, the appellant must offer a reasonable explanation for failing to file the notice of appeal timely. See id.; see also TEX. R. APP. P. 26.3, 10.5(b)(1)(C); Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 670 (Tex. 1989).
We therefore ordered appellant to file a written response in this court on or before January 7, 2016, offering a reasonable explanation for failing to file the notice of appeal in a timely manner. We advised appellant that if he failed to satisfactorily respond within the time provided, the appeal would be dismissed. See TEX. R. APP. P. 42.3(c). Appellant did not timely file a response.
Accordingly, because appellant did not provide a reasonable explanation as required under Verburgt, the notice of appeal was untimely and this court is without jurisdiction. See also TEX. R. APP. P. 26.3, 10.5(b)(1)(C); Verburgt, 959 S.W.2d at 615. We therefore dismiss the appeal for want of jurisdiction.
PER CURIAM