Ernestina Espinoza v. Hector De La Garza

• Court: Court of Appeals of Texas
• Decided: June 28, 2012
• Docket: 13-12-00218-CV
• Status: Published

Opinion

NUMBER 13-12-00218-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ____________________________________________________________

ERNESTINA ESPINOZA, APPELLANT,

v.

HECTOR DE LA GARZA, APPELLEE. ____________________________________________________________

On appeal from the County Court at Law No. 1 of Cameron County, Texas. ____________________________________________________________

MEMORANDUM OPINION Before Justices Rodriguez, Benavides, and Perkes Memorandum Opinion Per Curiam

Appellant, Ernestina Espinoza, attempted to perfect an appeal from a judgment

entered by the County Court at Law No. 1 of Cameron County, Texas, in cause number

2008-CCL-0862-A. We dismiss for want of jurisdiction. Summary Judgment in this cause was signed on December 14, 2011. A motion

for new trial was filed on January 13, 2012, and was denied by the trial court on March 6,

2012. Appellant filed a notice of appeal on April 2, 2012, stating she was appealing from

an order dated March 6, 2012. On April 10, 2012, the Clerk of this Court notified

appellant that it appeared that the order was not appealable. In response, appellant filed

an amended notice of appeal on April 17, 2012, citing the order from which she was

appealing was dated December 14, 2011.

On May 7, 2012, the Clerk of this Court notified appellant that it appeared that the

appeal was not timely perfected. Appellant was advised that the appeal would be

dismissed if the defect was not corrected within ten days from the date of receipt of the

Court=s directive. On May 18, 2012, appellant filed an unopposed “Response to Court

Communication and Alternatively, Motion for Extension of Time to File Motion for

Extension to File Notice of Appeal.” Appellant requests that this court consider her

appeal timely filed from the March 6, 2012, order or, alternatively, grant an extension to

file the notice of appeal.

Texas Rule of Appellate Procedure 26.1 provides that an appeal is perfected when

notice of appeal is filed within thirty days after the judgment is signed, unless a motion for

new trial is timely filed. TEX. R. APP. P. 26.1(a)(1). Where a timely motion for new trial or

motion to reinstate has been filed, notice of appeal shall be filed within ninety days after

the judgment is signed. TEX. R. APP. P. 26.1(a).

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.

2 See Verburgt v. Dorner, 959 S.W.2d 615, 617-18, 619 (1997) (construing the

predecessor to Rule 26). However, appellant must provide a reasonable explanation for

the late filing: it is not enough to simply file a notice of appeal. Id.; Woodard v. Higgins,

140 S.W.3d 462, 462 (Tex. App.BAmarillo 2004, no pet.); In re B.G., 104 S.W.3d 565, 567

(Tex. App.BWaco 2002, no pet.).

Texas Rule of Appellate Procedure 26.1 establishes the deadline for filing a notice

of appeal based on the date that the judgment was signed and not from the date a motion

for new trial is denied. See TEX. R. APP. P. 26.1(a). Pursuant to Texas Rule of

Appellate Procedure 26.1, appellant=s notice of appeal was due on March 14, 2012.

Although appellant has responded with an explanation regarding her late filing of the

notice of appeal, appellant’s notice of appeal was filed beyond the fifteen-day grace

period provided by rule 26.3.

The Court, having examined and fully considered the documents on file and

appellant=s failure to timely perfect her appeal, is of the opinion that the appeal should be

dismissed for want of jurisdiction. Appellant’s motion for extension of time to file notice of

appeal is DENIED. Accordingly, the appeal is hereby DISMISSED FOR WANT OF

JURISDICTION. See TEX. R. APP. P. 42.3(a).

PER CURIAM

Delivered and filed the 28th day of June, 2012.