Christopher James Coleman v. Dover Maintenance Association, Inc.

• Court: Court of Appeals of Texas
• Decided: January 13, 2015
• Docket: 04-14-00890-CV
• Status: Published

Opinion

Dover Maintenance Association, /s

Fourth Court of Appeals San Antonio, Texas January 12, 2015

No. 04-14-00890-CV

Christopher James COLEMAN, Appellant

v.

DOVER MAINTENANCE ASSOCIATION, INC., Appellee

From the 150th Judicial District Court, Bexar County, Texas Trial Court No. 2014-CI-01340 Honorable Antonia Arteaga, Judge Presiding

ORDER The trial court signed a final judgment on September 9, 2014. A timely motion for new trial was filed on October 7, 2014. TEX. R. CIV. P. 329b(a). Because appellant timely filed her motion for new trial, the notice of appeal was due to be filed on December 8, 2014. See TEX. R. APP. P. 26.1(a). Appellant filed his notice of appeal on December 19, 2014. A motion for extension of time in which to file the notice of appeal was due on December 23, 2014, but was not filed. See TEX. R. APP. P. 26.3. Appellee has filed a Motion to Dismiss this appeal.

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 (Tex. 1997) (construing the predecessor to Rule 26); Dimotsis v. State Farm Lloyds, 966 S.W.2d 657, 657 (Tex. App.–San Antonio 1998, no pet.) (stating same under current 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). 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.

It is therefore ORDERED that appellant file, no later than January 26, 2015, 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). All appellate filing dates are ABATED pending further orders from this court and appellee’s Motion to Dismiss is ORDERED HELD IN ABEYANCE.

___________________________________ Sandee Bryan Marion, Chief Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 12th day of January, 2015.

___________________________________ Keith E. Hottle Clerk of Court