Opinion
Appellate case number: 01-15-00522-CV
12-29-2015
Aleksander Borisov v. Kerry Lea Keels Chief Clerk, Harris County Justice Court Precinct 5 Place 1.
ORDER Trial court case number: 1041858 Trial court: County Civil Court at Law No. 4
Appellee has filed a "Motion to Dismiss for Lack of Jurisdiction" because appellant's notice of appeal, filed 31 days after the trial court signed the judgment, was untimely. See TEX. R. APP. P. 26.1. Appellee further argues that appellant is not entitled to the 15-day extension period provided by rule 26.3 because he failed to file a motion for extension of time. See TEX. R. APP. P. 26.3. Appellee moves for dismissal of the appeal. We deny the motion.
Generally speaking, a party wishing to file an appeal must file a notice of appeal within 30 days after the trial court signs the judgment or order. See TEX. R. APP. P. 26.1. A party may obtain additional time to file a notice of appeal if, within fifteen days after the deadline to file the notice of appeal, the party properly files the notice of appeal and a motion for extension of time. See TEX. R. APP. P. 26.3. Courts imply a motion for extension of time 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 extension period provided by rule 26.3. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). The appellant must, however, offer a reasonable explanation for failing to file the notice of appeal in a timely manner. See TEX. R. APP. P. 10.5(b)(1)(C), 26.3; Jones v. City of Houston, 976 S.W.2d 676, 677 (Tex. 1998).
Here, appellant filed his notice of appeal after the thirty-day deadline but within the fifteen-day extension period. Further, after receiving our notice of intent to dismiss this case, appellant responded by providing a reasonable explanation for failing to timely file his notice of appeal. Accordingly, we imply a motion for extension, and appellant's notice of appeal was timely filed within the fifteen-day extension period.
Accordingly, we DENY appellee's motion to dismiss appellant's appeal.
It is so ORDERED. Judge's signature: s/ Sherry Radack
[×] Acting individually [ ] Acting for the Court Date: December 29, 2015