Alvin M. Burns, I.M. Burns, Dimmit County, Hakim Dermish, Robert L. Ramirez and Edward J. Dryden v. Rosetta Resources, Ltd., A/K/A Rosetta Resources, Inc., Eusebio Cantu Torres, Eusebio Torres, Jr., Gladiator Energy Services, LLC

• Court: Court of Appeals of Texas
• Decided: January 11, 2017
• Docket: 04-16-00593-CV
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-16-00593-CV

Alvin M. BURNS, I.M. Burns, Dimmit County, Hakim Dermish, Robert L. Ramirez and Edward J. Dryden, Appellants

v.

ROSETTA RESOURCES, LTD., a/k/a Rosetta Resources, Inc., Eusebio Cantu Torres, Eusebio Torres, Jr., Gladiator Energy Services, LLC, Appellees

From the 293rd Judicial District Court, Dimmit County, Texas Trial Court No. 12-07-11738-DCV Honorable David Peeples, Judge Presiding

PER CURIAM

Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice

Delivered and Filed: January 11, 2017

DISMISSED AS TO HAKIM DERMISH

The trial court’s final judgment was signed on June 22, 2016. Because a timely motion for

new trial was filed, notice of appeal was due no later than September 20, 2016. TEX. R. APP. P.

26.1(a)(1). Any motion for extension of time to file the notice of appeal was due on October 5,

2016, fifteen days after the deadline for filing notice of appeal. TEX. R. APP. P. 26.3. Appellant

Hakim Dermish filed a late notice of appeal on September 23, 2016. His notice of appeal was,

however, filed within the fifteen-day grace period allowed by Rule 26.3. See TEX. R. APP. P. 04-16-00593-CV

26.3(a) (permitting an appellant to file a late notice of appeal in the trial court within 15 days after

the deadline and requiring the filing of a motion for extension of time to be filed in the appellate

court). Dermish did not file a motion for extension of time to file a late notice of appeal in this

court. See id.

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 Verburgt v.

Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (construing the predecessor to Rule 26). However, the

appellant 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). Therefore, on October 27, 2016, we issued a show

cause order instructing appellant Hakim Dermish to file a written response presenting a reasonable

explanation for his failure to file his notice of appeal in a timely manner and warning him that if

he failed to respond, his appeal would be dismissed. Appellant Hakim Dermish has not responded.

Accordingly, his appeal is dismissed. TEX. R. APP. P. 42.3(c).

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