Boma O. Allison v. Service Lloyds Insurance Company

Opinion

Order filed April 16, 2013.

In The

Fourteenth Court of Appeals

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NO. 14-13-00214-CV

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BOMA O. ALLISON, Appellant

V.

SERVICE LLOYDS INSURANCE COMPANY, Appellee

On Appeal from the 412th District Court Brazoria County, Texas Trial Court Cause No. 67540

ORDER

This is an appeal from a judgment signed November 16, 2012. Appellant filed a timely motion for new trial. The notice of appeal was due February 14, 2013. See Tex. R. App. P. 26.1. Appellant did not file the notice of appeal timely, and she did not file a motion to extend time to file the notice of appeal. The notice of appeal was filed February 26, 2013, a date within 15 days of its due date. The Texas Supreme Court has determined that a motion for extension of time is

“necessarily implied” when the perfecting instrument is filed within fifteen days of its due date. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997).

Appellee filed a motion to dismiss the appeal because of the late filing and appellant’s failure to file a motion for extension of time. While an extension may be implied, appellant is still obligated to come forward with a reasonable explanation to support the late filing. See Miller v. Greenpark Surgery Ctr. Assocs., Ltd., 974 S.W.2d 805, 808 (Tex. App.—Houston [14th Dist.] 1998, no pet.).

In accordance with our practice, we grant appellant 10 days from the date of this order to file a proper motion to extend time to file the notice of appeal in compliance with the Texas Rules of Appellate Procedure. See Tex. R. App. P. 26.3; 10.5(b). Appellee’s motion to dismiss shall remain pending. If appellant does not file a proper motion for extension of time to file the notice of appeal containing a reasonable explanation for the late filing on or before April 26, 2013, the court will consider dismissal of the appeal for want of jurisdiction.

PER CURIAM