Opinion
No. 04-16-00203-CV
05-25-2016
SCHMIDT LAND SERVICES, INC. and Walker Schmidt, Appellants v. Casie ASHWORTH a/k/a Casie Watkins, Appellee
MEMORANDUM OPINION
From the 45th Judicial District Court, Bexar County, Texas
Trial Court No. 2014-CI-03339
Honorable Michael E. Mery, Judge Presiding PER CURIAM Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Rebeca C. Martinez, Justice DISMISSED FOR LACK OF JURISDICTION
Casie Ashworth a/k/a Casie Watkins, the appellee, has filed a motion to dismiss this appeal for lack of jurisdiction. The appellee argues that this court has no jurisdiction over this appeal because the appellants, Schmidt Land Services, Inc. and Walker Schmidt, filed an untimely notice of appeal.
Rule 26.1 of the Texas Rules of Appellate Procedure provides that a notice of appeal must be filed within thirty days after the judgment is signed, unless a timely motion for new trial is filed. TEX. R. APP. P. 26.1. When a timely motion for new trial is filed, the notice of appeal must be filed within ninety days after the judgment is signed. Id. 26.1(a)(1). An appellate court may extend the time to file the notice of appeal if, within fifteen days after the deadline for filing the notice of appeal, the appellant files the notice of appeal and a motion for extension of time. Id. 26.3.
Here, the trial court signed a final judgment on December 1, 2015. The appellants filed a timely motion for new trial on December 29, 2015. Therefore, the notice of appeal was due on February 29, 2016. See TEX. R. APP. P. 26.1(a). However, appellants did not file their notice of appeal until March 11, 2016. Although the appellants' notice of appeal was not timely filed under Rule 26.1, it was filed within the fifteen-day grace period allowed by Rule 26.3. Appellants did not file a motion for extension of time in accordance with Rule 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 Texas Rule of Appellate Procedure 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 (Tex. 1997) (construing the predecessor to Rule 26). However, an appellant faced with these circumstances must provide a reasonable explanation for failing to file the notice of appeal in a timely manner. See id.; TEX. R. APP. P. 26.3.
In this case, we ordered the appellants to file a response presenting a reasonable explanation for their late notice of appeal. Appellants filed a response which explains their failure to file a motion for extension of time under Rule 26.3, but offers no explanation for their failure to file a notice of appeal in a timely manner. Because appellants have failed to provide a reasonable explanation for filing their notice of appeal after the deadline provided by Rule 26.1(a)(1), their notice of appeal was untimely and we have no jurisdiction over this appeal. See Markwardt v. City of San Antonio, No. 04-15-00674-CV, 2016 WL 320597, at *1 (Tex. App.—San Antonio 2016, no pet.) (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).
We, therefore, grant appellee's motion to dismiss and dismiss this appeal for lack of jurisdiction.
PER CURIAM