Progreso Co-Op Gin, Inc. v. Cintas Corporation

• Court: Court of Appeals of Texas
• Decided: August 29, 2008
• Docket: 13-08-00400-CV
• Status: Published

Opinion

NUMBER 13-08-400-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ______________________________________________________________

PROGRESO CO-OP GIN, INC., Appellant,

v.

CINTAS CORPORATION, Appellee. _____________________________________________________________

On appeal from County Court at Law No. 4 of Hidalgo County, Texas. ______________________________________________________________

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Yañez and Benavides Memorandum Opinion Per Curiam

Appellant, Progreso Co-Op Gin, Inc., attempted to perfect an appeal from an order

entered by the County Court at Law No. 4 of Hidalgo County, Texas, in cause number

CL-05-1885-D. The order subject to appeal, a Take Nothing Judgment, was signed on

April 3, 2008, but the notice of appeal was not filed until May 20, 2008. Pursuant to Texas Rule of Appellate Procedure 26.1, appellant’s notice of appeal

was due on May 5, 2008. 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. See Verburgt v. Dorner, 959 S.W.2d 615, 617-18, 619 (Tex. 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.–Amarillo 2004, no pet.); In re B.G., 104

S.W.3d 565, 567 (Tex. App.–Waco 2002, no pet.).

On June 23, 2008, the Clerk of this Court notified appellant of this defect so that

steps could be taken to correct the defect, if it could be done. Appellant was advised that,

if the defect was not corrected within ten days from the date of receipt of this Court’s letter,

the appeal would be dismissed. To date, no response has been received from appellant

providing a reasonable explanation for the late filing of the notice of appeal.

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

failure to timely perfect his appeal, and appellant’s failure to respond to this Court’s notice,

is of the opinion that the appeal should be dismissed for want of jurisdiction. Accordingly,

the appeal is hereby DISMISSED FOR WANT OF JURISDICTION. See TEX . R. APP. P.

42.3(a)(c).

PER CURIAM

Memorandum Opinion delivered and filed this the 29th day of August, 2008.