Larry Paul v. Red Rock Pipeline and Irrigation, LLC

• Court: Court of Appeals of Texas
• Decided: November 5, 2015
• Docket: 06-15-00069-CV
• Status: Published

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-15-00069-CV

LARRY PAUL, Appellant

V.

RED ROCK PIPELINE AND IRRIGATION, LLC, Appellee

On Appeal from the 6th District Court Red River County, Texas Trial Court No. CV03068

Before Morriss, C.J., Moseley and Burgess, JJ. Memorandum Opinion by Justice Burgess MEMORANDUM OPINION The final judgment from which Larry Paul attempts to appeal was signed by the trial court

on June 2, 2015. Paul timely filed a motion for new trial on July 1, 2015, thereby extending the

deadline for filing his notice of appeal to August 31, 2015—ninety days from the date the judgment

was signed. See TEX. R. CIV. P. 329b(a); TEX. R. APP. P. 26.1(a). The electronically created

endorsement of the Red River County District Clerk’s Office indicates that Paul’s notice of appeal

was filed on September 16, 2015, and the certificate of service accompanying the notice of appeal

and signed by Paul’s counsel confirms that the notice of appeal was not transmitted until

September 16. Thus, Paul failed to perfect his appeal by filing a notice of appeal within ninety

days of the date the judgment being appealed was signed. See TEX. R. APP. P. 26.1(a)(1).

However, under Rule 26.3 of the Texas Rules of Civil Procedure, an individual who fails

to perfect an appeal by timely filing notice can, within fifteen days of the deadline for filing the

notice, move for an extension of time. TEX. R. APP. P. 26.3. And, in the civil context, “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 [the Rules], but within the fifteen-day period in which the

appellant would be entitled to move to extend the filing deadline . . . .” Verburgt v. Dorner, 959

S.W.2d 615, 617 (Tex. 1997). The deadline for Paul to file his notice of appeal was August 31,

2015; thus, if he filed his notice within fifteen days of that date, or on or before September 15,

2015, then the motion for extension would have been implied and his notice could have been

accepted as timely. As noted above, however, Paul did not file his notice until September 16,

2015; consequently, he cannot benefit from the fifteen-day grace period of Rule 26.3, and we are

2 without jurisdiction to hear his appeal. See Grant v. Hope Village Apartments, No. 09-09-00527-

CV, 2010 WL 4262001 (Tex. App.—Beaumont Oct. 28, 2010, pet. denied) (mem. op.).

By letter dated October 2, 2015, we informed Paul of this potential defect in our jurisdiction

and afforded him the opportunity to either cure the defect or demonstrate the fallacy of our

reasoning. Paul did not file a response to our letter.

In light of the foregoing, we dismiss this appeal for want of jurisdiction.

Ralph K. Burgess Justice

Date Submitted: November 4, 2015 Date Decided: November 5, 2015