Larry Linville v. Leuty Avenue Apartments

• Court: Court of Appeals of Texas
• Decided: August 9, 2018
• Docket: 02-18-00186-CV
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-18-00186-CV

LARRY LINVILLE APPELLANT

V.

LEUTY AVENUE APARTMENTS APPELLEE

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FROM COUNTY COURT AT LAW NO. 2 OF DENTON COUNTY TRIAL COURT NO. CV-2018-00970

MEMORANDUM OPINION1

Appellant Larry Linville attempts to appeal from a forcible-detainer

judgment in which Appellee Leuty Avenue Apartments was awarded possession

of property described as 909 W. 7th Street, Apartment #9, Justin, Texas 76247.

On June 1, 2018, we notified Linville of concerns regarding jurisdiction because

the trial court’s judgment was signed on April 24, 2018 and no postjudgment

1 See Tex. R. App. P. 47.4. motion was filed to extend the appellate deadlines, so the notice of appeal was

due by May 24, 2018. But it was not filed until May 29, 2018. We provided

Linville or any other party desiring to continue the appeal ten days to respond

and provide a reasonable explanation for the late-filed notice of appeal, and we

cautioned that the failure to provide such a response could result in the dismissal

of this appeal for want of jurisdiction. See Tex. R. App. P. 10.5(b), 26.3(b),

42.3(a). More than ten days have passed and neither Linville nor any other party

has filed a response to our June 1, 2018 letter.

The time for filing a notice of appeal is jurisdictional, and absent a timely-

filed notice of appeal or motion for extension of time to file the notice of appeal,

we must dismiss the appeal. See Tex. R. App. P. 2, 25.1(b), 26.3; Jones v. City

of Houston, 976 S.W.2d 676, 677 (Tex. 1998); Verburgt v. Dorner, 959 S.W.2d

615, 617 (Tex. 1997). 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 period in which the appellant would be

entitled to move to extend the filing deadline under rule 26.3. See Jones, 976

S.W.2d at 677; Verburgt, 959 S.W.2d at 617; see also Tex. R. App. P. 26.1, 26.3.

But even when a motion for extension is implied, it is still necessary for the

appellant to reasonably explain the need for an extension. See Jones, 976

S.W.2d at 677; Verburgt, 959 S.W.2d at 617; Woodard v. Higgins, 140 S.W.3d

462, 462 (Tex. App.—Amarillo 2004, no pet.).

2 Linville’s notice of appeal was untimely filed but filed within the fifteen-day

period in which a motion for extension of time is implied. Thus, Linville was still

required to provide an explanation for needing an extension. See Tex. R. App.

P. 42.3(a); Jones, 976 S.W.2d at 677; Verburgt, 959 S.W.2d at 617; Chilkewitz v.

Winter, 25 S.W.3d 382, 383 (Tex. App.—Fort Worth 2000, no pet.). Because he

did not, the notice of appeal in this cause remains untimely. See Garcia v. Green

Tree Servicing LLC, Nos. 13-13-00694-CV, 13-13-00695-CV, 2014 WL 1465037,

at *2–4 (Tex. App.—Corpus Christi Apr. 10, 2014, no pet.) (mem. op.).

Accordingly, we dismiss Linville’s attempted appeal for want of jurisdiction.

Tex. R. App. P. 42.3(a), 43.2(f).2

PER CURIAM

PANEL: WALKER, MEIER, and GABRIEL, JJ.

DELIVERED: August 9, 2018

2 We also note that our review of the trial court’s online docket sheet indicates that the writ of possession has already been executed and Appellee has obtained possession of the property. Although the failure to supersede a forcible-detainer judgment does not divest an appellant of the right to appeal, an appeal from a forcible-detainer judgment becomes moot when the appellant ceases to have actual possession of the property, unless the appellant has a potentially meritorious claim of right to current, actual possession of the property. See Marshall v. Housing Auth. of the City of San Antonio, 198 S.W.3d 782, 787 (Tex. 2006). Thus, even if we did have jurisdiction over Linville’s attempted appeal, we alternatively dismiss it as moot.