Opinion
No. 04-16-00203-CV
04-29-2016
SCHMIDT LAND SERVICES, INC. and Walker Schmidt, Appellants v. Casie ASHWORTH a/k/a Casie Watkins, Appellee
From the 45th Judicial District Court, Bexar County, Texas
Trial Court No. 2014-CI-03339
Honorable Michael E. Mery, Judge Presiding
ORDER
The appellee has filed a motion to dismiss this appeal claiming the notice of appeal was not timely filed. The trial court signed a final judgment on December 1, 2015. Appellants filed a timely motion for new trial on December 29, 2015. Therefore, the notice of appeal was due to be filed on February 29, 2016. See TEX. R. APP. P. 26.1(a). A motion for extension of time to file the notice of appeal was due on March 15, 2016. See TEX. R. APP. P. 26.3. Although appellants filed a notice of appeal within the fifteen-day grace period allowed by Rule 26.3, they did not file a motion for extension of time.
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, the appellants must offer a reasonable explanation for failing to file the notice of appeal in a timely manner. See id.; TEX. R. APP. P. 26.3, 10.5(b)(1)(C).
We, therefore, ORDER the appellants to file, within fifteen days from the date of this order, a response presenting a reasonable explanation for failing to file the notice of appeal in a timely manner. If appellant fails to respond within the time provided, the appeal will be dismissed. See TEX. R. APP. P. 42.3(c). Appellee's motion to dismiss this appeal is HELD IN ABEYANCE.
/s/_________
Karen Angelini, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 29th day of April, 2016.
/s/_________
Keith E. Hottle
Clerk of Court