Mark Allen Earl v. James Dale Kinnaird

• Court: Court of Appeals of Texas
• Decided: April 25, 2019
• Docket: 02-19-00078-CV
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-19-00078-CV ___________________________

MARK ALLEN EARL, Appellant

V.

JAMES DALE KINNAIRD, Appellee

On Appeal from the 233rd District Court Tarrant County, Texas Trial Court No. 233-650004-18

Before Gabriel, Kerr, and Pittman, JJ. Memorandum Opinion by Justice Gabriel MEMORANDUM OPINION

Appellant Mark Allen Earl attempts to appeal from a protective order the trial

court rendered against him, which it signed on November 26, 2018. Earl filed a

motion for new trial, and thus his deadline to file a notice of appeal was February 25,

2019. See Tex. R. App. P. 26.1(a)(1). But Earl did not file his notice of appeal until

March 1, 2019.

On March 8, 2019, we notified Earl of our concern that we lacked jurisdiction

over his appeal because his notice of appeal was untimely filed. We provided Earl 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 Earl nor any other party has filed a response to our March 8, 2019

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. 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 2 filing deadline under rule 26.3. See Tex. R. App. P. 26.1, 26.3; Jones, 976 S.W.2d at 677;

Verburgt, 959 S.W.2d at 617. But even when a motion for extension is implied, the

appellant still must 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.).

Earl’s notice of appeal was untimely, but it was filed within the fifteen-day

period in which a motion for extension of time is implied. Even so, Earl still had to

reasonably explain his need for 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, we dismiss this

appeal for want of jurisdiction. Tex. R. App. P. 42.3(a), 43.2(f).

/s/ Lee Gabriel

Lee Gabriel Justice

Delivered: April 25, 2019