Angelita Salazar A/K/A Angie Salazar, Formerly Known as Angie Garza v. 21st Mortgage Corporation

• Court: Court of Appeals of Texas
• Decided: March 8, 2018
• Docket: 13-18-00027-CV
• Status: Published

Opinion

NUMBER 13-18-000027-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ____________________________________________________________

ANGELITA SALAZAR, A/K/A ANGIE SALAZAR, F/K/A ANGIE GARZA, Appellant,

v.

21ST MORTGAGE CORPORATION, Appellee. ____________________________________________________________

On appeal from the 206th District Court of Hidalgo County, Texas. ____________________________________________________________

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Contreras and Benavides Memorandum Opinion by Justice Benavides

Appellant, Angelita Salazar a/k/a Angie Salazar f/k/a Angie Garza, attempted to

perfect an appeal from a judgment entered by the 206th District Court of Hidalgo County,

Texas, in cause number C-5003-15-D. We dismiss for want of jurisdiction. Judgment in this cause was signed on August 29, 2017. A motion to reconsider

and vacate the judgment was filed on September 28, 2017. Appellant filed a notice of

appeal and a “corrected” notice of appeal on January 12, 2018. On January 16, 2018,

the Clerk of this Court notified appellant that it appeared that the appeal was not timely

perfected. Appellant was advised that the appeal would be dismissed if the defect was

not corrected within ten days from the date of receipt of the Court’s directive. To date,

no response has been received from appellant.

Texas Rule of Appellate Procedure 26.1 provides that an appeal is perfected when

notice of appeal is filed within thirty days after the judgment is signed, unless a motion for

new trial or motion to modify the judgment is timely filed. TEX. R. APP. P. 26.1(a)(1).

Where a timely motion for new trial or motion to modify the judgment has been filed, notice

of appeal shall be filed within ninety days after the judgment is signed. TEX. R. APP. P.

26.1(a).

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, 617-18, 619 (1997) (construing the predecessor

to Rule 26). However, appellant must provide a reasonable explanation for the late filing:

it is not enough to simply file a notice of appeal. Id.; Woodard v. Higgins, 140 S.W.3d

462, 462 (Tex. App.−Amarillo 2004, no pet.); In re B.G., 104 S.W.3d 565, 567 (Tex.

App.−Waco 2002, no pet.).

2 Pursuant to Texas Rule of Appellate Procedure 26.1, appellant’s notice of appeal

was due November 27, 2017, but was not filed until January 12, 2018. Appellant’s

“corrected” notice of appeal states that the appellant’s motion to reconsider and vacate

the judgment was not ruled on and became final on December 15, 2017. Texas Rule of

Appellate Procedure 26.1 establishes the deadline for filing a notice of appeal based on

the date that the judgment was signed and not from the date a motion for reconsideration

becomes final. See TEX. R. APP. P. 26.1(a).

The Court, having examined and fully considered the documents on file and

appellant’s failure to timely perfect her appeal, is of the opinion that the appeal should be

dismissed for want of jurisdiction. Accordingly, the appeal is hereby DISMISSED FOR

WANT OF JURISDICTION. See TEX. R. APP. P. 42.3(a).

GINA M. BENAVIDES, Justice

Delivered and filed the 8th day of March, 2018.