Chilkewitz v. Winter

Court of Appeals of Texas

Chilkewitz v. Winter

25 S.W.3d 382, 2000 Tex. App. LEXIS 5195, 2000 WL 1060543

CourtCourt of Appeals of Texas

DecidedAugust 3, 2000

Docket2-00-198-CV

StatusPublished

Cited by38 cases

This text of 25 S.W.3d 382 (Chilkewitz v. Winter) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Chilkewitz v. Winter, 25 S.W.3d 382, 2000 Tex. App. LEXIS 5195, 2000 WL 1060543 (Tex. Ct. App. 2000).

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Opinion

OPINION

PER CURIAM.

Lawrence J. Chilkewitz appeals the trial court’s judgment dismissing his lawsuit for want of prosecution. Because appellant’s notice of appeal was untimely filed, we dismiss the appeal for want of jurisdiction.

The trial court rendered a final judgment on February 23, 2000. Appellant timely filed a motion for new trial, thereby extending the appellate timetable and making his notice of appeal due on May 23, 2000. See Tex.R.App. P. 26.1. Appellant filed his notice of appeal on June 7, 2000, 15 days after his filing deadline. Because appellant’s notice of appeal was untimely, we notified appellant that we would dismiss this appeal unless appellant or any party desiring to continue the appeal filed with the court a response showing grounds for continuing the appeal. See Tex.R.App. P. 42.3. We have not received any response.

The times for filing a notice of appeal are jurisdictional in this court, and absent a timely filed notice of appeal, we must dismiss the appeal. See id. 2, 25.1(b); Jones v. City of Houston, 976 S.W.2d 676, 677 (Tex.1998); Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex.1997). The Rules of Appellate Procedure allow the court to extend the time to file a notice of appeal for 15 days, if the party files the notice of appeal within 15 days after the *383 deadline and files a motion for extension that reasonably explains the need for an extension. See Tex.R.App. P. 10.5(b)(1)(C), 26.3; Jones, 976 S.W.2d at 677; Verburgt, 959 S.W.2d at 617. 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 15-day period in which appellant would be entitled to move to extend the filing deadline under rule 26.3. See Jones, 976 S.W.2d at 677; Verburgt, 959 S.W.2d at 617; see also Tex.R.App. P. 26.1, 26.3. However, when a motion for extension is implied, it is still necessary for the appellant to reasonably explain the need for an extension. See Jones, 976 S.W.2d at 677; Verburgt, 959 S.W.2d at 617.

This court sent appellant notice of its intent to dismiss the appeal unless appellant showed grounds for continuing the appeal. Even though appellant filed his notice of appeal on the 15th day after the filing deadline, he failed to reasonably explain the need for an extension of time to file the notice. See Tex.R.App. P. 42.3. Because appellant’s notice of appeal was untimely and he did not provide a reasonable explanation for needing an extension, we dismiss the appeal for want of jurisdiction.

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OPINION

PER CURIAM.

Lawrence J. Chilkewitz appeals the trial court’s judgment dismissing his lawsuit for want of prosecution. Because appellant’s notice of appeal was untimely filed, we dismiss the appeal for want of jurisdiction.

The trial court rendered a final judgment on February 23, 2000. Appellant timely filed a motion for new trial, thereby extending the appellate timetable and making his notice of appeal due on May 23, 2000. See Tex.R.App. P. 26.1. Appellant filed his notice of appeal on June 7, 2000, 15 days after his filing deadline. Because appellant’s notice of appeal was untimely, we notified appellant that we would dismiss this appeal unless appellant or any party desiring to continue the appeal filed with the court a response showing grounds for continuing the appeal. See Tex.R.App. P. 42.3. We have not received any response.

The times for filing a notice of appeal are jurisdictional in this court, and absent a timely filed notice of appeal, we must dismiss the appeal. See id. 2, 25.1(b); Jones v. City of Houston, 976 S.W.2d 676, 677 (Tex.1998); Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex.1997). The Rules of Appellate Procedure allow the court to extend the time to file a notice of appeal for 15 days, if the party files the notice of appeal within 15 days after the *383 deadline and files a motion for extension that reasonably explains the need for an extension. See Tex.R.App. P. 10.5(b)(1)(C), 26.3; Jones, 976 S.W.2d at 677; Verburgt, 959 S.W.2d at 617. 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 15-day period in which appellant would be entitled to move to extend the filing deadline under rule 26.3. See Jones, 976 S.W.2d at 677; Verburgt, 959 S.W.2d at 617; see also Tex.R.App. P. 26.1, 26.3. However, when a motion for extension is implied, it is still necessary for the appellant to reasonably explain the need for an extension. See Jones, 976 S.W.2d at 677; Verburgt, 959 S.W.2d at 617.

This court sent appellant notice of its intent to dismiss the appeal unless appellant showed grounds for continuing the appeal. Even though appellant filed his notice of appeal on the 15th day after the filing deadline, he failed to reasonably explain the need for an extension of time to file the notice. See Tex.R.App. P. 42.3. Because appellant’s notice of appeal was untimely and he did not provide a reasonable explanation for needing an extension, we dismiss the appeal for want of jurisdiction.

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Bluebook (online)

25 S.W.3d 382, 2000 Tex. App. LEXIS 5195, 2000 WL 1060543, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chilkewitz-v-winter-texapp-2000.

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