Opinion
04-24-00274-CV
07-26-2024
Elizabeth CERDA, Appellant v. CROSSROADS MALL PARTNERS, LTD. and Target Corporation, Appellees
From the 224th Judicial District Court, Bexar County, Texas Trial Court No. 2018CI23683 Honorable Antonia Arteaga, Judge Presiding
ORDER
Luz Elena D. Chapa, Justice
On June 24, 2024, the trial court clerk filed the clerk's record. The clerk's record shows the trial court signed an order granting a no-evidence motion for summary judgment in favor of appellees, Crossroads Mall Partners LTD. and Target Corporation. However, the order was not final. See Sealy Emergency Room, L.L.C. v. Free Standing Emergency Room Managers of Am., L.L.C., 685 S.W.3d 816, 820 (Tex. 2024). On March 8, 2024, the trial court signed an order severing the remaining parties and claims into a new action, and as a result, the underlying action became final for purposes of appeal. See Piranha Partners v. Neuhoff, 596 S.W.3d 740, 743 n.4 (Tex. 2020) (observing that trial court "granted a motion for partial summary judgment, but it severed all remaining claims, counterclaims, and defenses into a separate case, making this judgment final").
Thereafter, on April 12, 2024, appellant filed a notice of appeal. In the notice of appeal, counsel for appellant explains the notice of appeal is timely because counsel made a bonafide attempt to file a timely motion for new trial, making the notice of appeal due by June 6, 2024. See TEX. R. APP. P. 26.1(a)(1). Counsel states he filed the wrong document as a motion for new trial, and when he realized his error, he filed a corrected motion for new trial three days after the motion for new trial deadline. He further stated he was waiting to see if the trial court would deem the motion for new trial timely. Then, out of an abundance of cation, he filed the notice of appeal within the fifteen-day grace period provided by the Texas Rule of Appellate Procedure 26.3 for filing a motion for extension of time pursuant to Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997).
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 id. (construing the predecessor to Rule 26). However, an appellant must offer a reasonable explanation for failing to file the notice of appeal in a timely manner. See TEX. R. APP. P. 26.3; Hone v. Hanafin, 104 S.W.3d 884, 887 (Tex.2003) (per curiam) (explaining appellant must offer "plausible good faith justification for filing their notice of appeal when they did.)." "Absent a finding that an appellant's conduct was deliberate or intentional, the court of appeals should ordinarily accept the appellant's explanations as reasonable." Hone, 104 S.W.3d at 887. Thus, under this liberal standard, any reason short of deliberate or intentional noncompliance qualifies as reasonable. See id. at 886-87. Here, counsel's explanation shows his conduct was not deliberate or intentional, but rather a mistake, qualifying as a reasonable explanation. See id. We therefore deem the notice of appeal timely filed.
At this time, the reporter's record has not been filed, but on July 18, 2024, the court reporter filed a letter stating she had received payment for the record and will have it completed by August 8, 2024. We therefore order the reporter's record due by August 8, 2024 .