Ki Jun Jang and YK Quick Stop Food, Inc. v. UM Investor Co., LLC

• Court: Court of Appeals of Texas
• Decided: April 28, 2020
• Docket: 01-19-01004-CV
• Status: Published

Opinion

COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER

Appellate case name: Ki Jun Jang and YK Quick stop Food, Inc. v. UM Investor Co., LLC

Appellate case number: 01-19-01004-CV

Trial court case number: 2017-13558

Trial court: 281st District Court of Harris County

Appellants appeal from a final judgment signed on November 7, 2019. Appellants filed a motion for new trial and a notice of appeal on December 11, 2019. Appellee filed a motion to dismiss the appeal, arguing that appellants filed their notice of appeal on December 20, 2019, and that we lack jurisdiction over the appeal. A notice of appeal is due within 30 days after the judgment is signed. See TEX. R. APP. P. 26.1. If a motion for new trial is timely filed, the deadline for filing the notice of appeal is extended to 90 days after the judgment is signed. TEX. R. CIV. P. 329b(a); TEX. R. APP. P. 26.1(a). A motion for new trial is timely filed if filed within 30 days after the judgment is signed. TEX. R. CIV. P. 329b(a). The judgment in this case was signed on November 7, 2019. Because the motion for new trial was filed on December 11, a date more than 30 days after the judgment was signed, it did not extend the deadline for filing the notice of appeal. The notice of appeal was due 30 days after the judgment was signed, or by December 7, 2019. The notice of appeal was filed on December 11. An appellate court may extend the time to file the notice of appeal if, within fifteen days after the deadline, the appellant files a motion for extension of time to file the notice of appeal. See TEX. R. APP. P. 26.3). The Texas Supreme Court has held that, if an appellant files the notice of appeal within the fifteen-day period after it is due, an extension of time is necessarily implied. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). Appellants filed their notice of appeal within the 15-day period after it was due and therefore, an extension is implied. The appellants must, however, offer a reasonable explanation for failing to file the 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). Appellants filed a response to appellee’s motion to dismiss, asserting that they filed both their motion for new trial and notice of appeal on December 11, 2019. The record supports this assertion. Appellants further note that their counsel was ill and hospitalized on December 6 and was unable to return to work until December 10, 2019. Appellant ask that we accept this response as a reasonable explanation for the failure to timely file the notice of appeal. Because appellants have reasonably explained the delay in filing the notice of appeal, they are entitled to an extension of time to file their notice of appeal. Appellee’s motion to dismiss is denied. It is so ORDERED.

Judge’s signature: _____/s/ Richard Hightower_________  Acting individually  Acting for the Court

Date: ____April 28, 2020______