Opinion
No. 08-14-00066-CV
04-24-2014
CHARLES N. TAYLOR, JR., Appellant, v. DEE MARGO, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES AND MICHAEL WILLIAMS, IN HISINDIVIDUAL AND OFFICIAL CAPACITIES, Appellees.
Appeal from
County Court at Law No. 3
of El Paso County, Texas
(TC # 2013-DCV-2873)
ORDER
Appellees have filed a motion to dismiss the appeal for want of jurisdiction because Appellant, Charles N. Taylor, Jr., failed to timely file his notice of appeal. The trial court entered a modified order on January 16, 2014 granting the pleas to the jurisdiction filed by Appellees. The order specifically states: "...that nothing herein shall be construed as constituting a ruling on Defendant Dee Margo's Counterclaims contained in the First Amended Original Answer of Defendant Donald "Dee" Margo, dated December 11, 2013." Since the order does not dispose of all pending claims, it is not a final judgment for purposes of appeal. See Lehmann v. Har-Con Corporation, 39 S.W.3d 191, 195 (Tex. 2001).
The interlocutory appeal of an order granting a plea to the jurisdiction is an accelerated appeal, and accordingly, the notice of appeal must be filed no later than 20 days after the date the order is signed. See TEX.CIV.PRAC. & REM.CODE ANN. § 51.014(a)(8)(West Supp. 2013); TEX.R.APP.P. 26.1(b), 28.1(a). Appellant's notice of appeal was due to be filed no later than February 5, 2014. See TEX.R.APP.P. 26.1(b). Appellant did not file his notice of appeal until February 14, 2014, nine days after the due date. The appellate court may extend the time to file the notice of appeal if, within fifteen days after the deadline passes, the appellant files (1) the notice of appeal in the trial court and (2) a motion for extension of time complying with Rule of Appellate Procedure 10.5(b) in the appellate court. See TEX.R.APP.P. 10.5(b)(1)(C), 26.3; Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). Under Rule 10.5, the extension motion must include the facts relied on to reasonably explain the need for the extension. TEX.R.APP.P. 10.5(b)(1)(C).
The failure to file an extension motion is not necessarily fatal in a civil appeal. The Texas Supreme Court has held that a motion for extension of time is "necessarily implied" when an appellant acting in good faith files an appeal bond after the deadline, but within the 15-day extension period. Verburgt, 959 S.W.2d at 617. Several of our sister courts have applied this holding to notices of appeal. See, e.g., Chilkewitz v. Winter, 25 S.W.3d 382, 383 (Tex.App.--Fort Worth 2000, no pet.); Industrial Services U.S.A., Inc. v. American Bank, N.A., 17 S.W.3d 358, 359 (Tex.App.--Corpus Christi 2000, no pet.); Smith v. Houston Lighting & Power Co., 7 S.W.3d 287, 288 (Tex.App.--Houston [1st Dist.] 1999, no pet.); Kidd v. Paxton, 1 S.W.3d 309, 310 (Tex.App.--Amarillo 1999, pet. denied)(op. on reh'g).
Under the foregoing authority, a motion for extension of time is implied, but Appellant is still required to provide a reasonable explanation for the delay in filing his notice of appeal. See TEX.R.APP.P. 10.5(b)(1)(C); Verburgt, 959 S.W.2d at 617. The Court hereby gives notice of its intent to dismiss the appeal for want of jurisdiction unless any party establishes grounds for the appeal to continue within ten days from the date of this order. Appellant is specifically directed to file with the Court a reasonable explanation for his failure to timely file the notice of appeal. Appellees' motion to dismiss the appeal will remain pending. If Appellant fails to provide a reasonable explanation within ten days from the date of this order, the Court will dismiss the appeal for want of jurisdiction without further notice.
IT IS SO ORDERED THIS 24TH DAY OF APRIL, 2014.
PER CURIAM
Before McClure, C.J., Rivera, and Rodriguez, JJ.