Brian C. Simcoe v. Thomas Christopher and Catrina Christopher

• Court: Court of Appeals of Texas
• Decided: November 5, 2014
• Docket: 04-14-00735-CV
• Status: Published

Opinion

Thomas Christopher and

Fourth Court of Appeals San Antonio, Texas November 5, 2014

No. 04-14-00735-CV

Brian C. SIMCOE, Appellant

v.

Thomas CHRISTOPHER and Catrina Christopher, Appellees

From the 45th Judicial District Court, Bexar County, Texas Trial Court No. 2012-CI-15519 Honorable Barbara Hanson Nellermoe, Judge Presiding

ORDER The trial court signed a final judgment on July 9, 2014. Appellant filed a timely motion for new trial on August 7, 2014. Therefore, the notice of appeal was due to be filed on October 7, 2014. See TEX. R. APP. P. 26.1(a). A motion for extension of time to file the notice of appeal was due on October 22, 2014. See TEX. R. APP. P. 26.3. Although appellant filed a notice of appeal within the fifteen-day grace period allowed by Rule 26.3, he 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 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)(1)(C).

We, therefore, ORDER appellant 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).

_________________________________ Karen Angelini, Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 5th day of November, 2014.

___________________________________ Keith E. Hottle Clerk of Court