Christopher Early v. Texas Mutual Insurance Co.

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-19-00565-CV

Christopher EARLY, Appellant

v.

TEXAS MUTUAL INSURANCE CO., Appellee

From the 81st Judicial District Court, Wilson County, Texas Trial Court No. 17-07-0426-CVW Honorable Russell Wilson, Judge Presiding

PER CURIAM

Sitting: Sandee Bryan Marion, Chief Justice Beth Watkins, Justice Liza A. Rodriguez, Justice

Delivered and Filed: September 25, 2019

DISMISSED FOR WANT OF PROSECUTION

On August 7, 2019, appellant filed a notice of appeal stating his intention to appeal a

judgment he states was signed on August 7, 2019 in trial court cause number 17-07-0426-CVW.

On August 23, 2019, appellee filed a letter questioning this court’s jurisdiction to consider

appellant’s appeal, noting the final judgment was signed on January 30, 2019, and the notice of

appeal was filed six months after the final judgment was signed. Also on August 23, 2019, the trial

court clerk filed a notification of late record stating appellant had failed to pay the fee for preparing

the clerk’s record. 04-19-00565-CV

Although a notice of appeal generally is required to be filed within thirty days after a final

judgment is signed, a restricted appeal must be filed within six months after the judgment is signed.

See TEX. R. APP. P. 26.1; see also Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (holding

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). The final judgment signed by the

trial court grants the appellee’s motion for summary judgment. “[W]hen a party neither files a

response nor appears at the hearing on a summary judgment motion, a restricted appeal is

permissible.” Samples v. Dall. Cty. Special Civil Serv. Comm’n, No. 05-14-00920-CV, 2015 WL

7873720, at *4 (Tex. App.—Dallas Dec. 4, 2015, no pet.) (mem. op.). In the absence of a clerk’s

record, we could not determine whether appellant’s notice of appeal was timely filed.

We therefore ordered appellant to provide written proof to this court by September 6, 2019

that either (1) the clerk’s fee has been paid or arrangements have been made to pay the clerk’s fee;

or (2) appellant is entitled to appeal without paying the clerk’s fee. We advised appellant that if he

failed to respond within the time provided, this appeal would be dismissed for want of prosecution.

See TEX. R. APP. P. 37.3(b). Appellant has not responded, and no clerk’s record has been filed.

We therefore order this appeal dismissed for want of prosecution. See id. R. 38.8(a)(1),

42.3(b).

-2-