Colony Flooring & Design, Inc. v. Regions Bank

• Court: Court of Appeals of Texas
• Decided: May 10, 2013
• Docket: 01-13-00210-CV
• Status: Published

Opinion

COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER

Appellate case name: Colony Flooring & Design, Inc. v. Regions Bank

Appellate case number: 01-13-00210-CV

Trial court case number: 2011-42183

Trial court: 270th District Court of Harris County

Appellant, Colony Flooring & Design, Inc., has filed a motion for extension of time to file its notice of appeal. A clerk’s record has now been filed. The record reflects that appellant appeals from the trial court’s judgment signed on November 28, 2012. Appellant timely filed a motion for new trial. See TEX. R. APP. P. 9.2. Appellant’s notice of appeal was therefore due by February 26, 2013. See TEX. R. APP. P. 26.1. Appellant filed its notice of appeal 13 days later, on March 11, 2013. We may extend the time to file the notice of appeal if, within 15 days after the deadline to file the notice of appeal, the appellant files a motion for extension. See TEX. R. APP. P. 10.5(b), 26.3. A motion for extension was due by March 13, 2013. Appellant electronically filed its motion for extension on March 14, 2013. As such, appellant’s motion for extension of time did not extend the deadline to file its notice of appeal. A motion for extension of time is necessarily implied, however, when, as here, an appellant, acting in good faith, files a notice of appeal beyond the time allowed by rule 26.1, but within the 15-day extension period provided by Rule 26.3. See TEX. R. APP. P. 26.1, 26.3; Verburgt v. Dorner, 959 S.W.2d 615, 617–18 (Tex. 1997). The appellant must, however, offer a reasonable explanation for failing to file its notice of appeal in a timely manner. See TEX. R. APP. P. 10.5(b)(1)(C), 26.3; Jones v. City of Houston, 976 S.W.2d 676, 677 (Tex. 1998). Appellant’s late-filed motion for extension of time to file the notice of appeal, which we dismiss as moot, provides the reasonable explanation for the delay. See Jones, 976 S.W.2d at 677; In re G.J.P., 314 S.W.3d 217, 221 (Tex. App.—Texarkana 2010, pet. denied) (concluding that appellants provided, in late-filed motion for extension of time to file notice of appeal, reasonable explanation to support Verburgt extension). Therefore, appellant’s notice of appeal is timely filed. It is so ORDERED. Judge’s signature: /s/ Sherry Radack  Acting individually  Acting for the Court

Date: May 10, 2013