Robert H. Twist v. Hochheim Prairie Farm Mutual Insurance Association

• Court: Court of Appeals of Texas
• Decided: August 21, 2012
• Docket: 13-12-00438-CV
• Status: Published

Opinion

NUMBER 13-12-00438-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ____________________________________________________________

ROBERT H. TWIST, Appellant,

v.

HOCHHEIM PRAIRIE FARM MUTUAL INSURANCE ASSOCIATION, ET AL., Appellees. ____________________________________________________________

On Appeal from the 275th District Court of Hidalgo County, Texas. ____________________________________________________________

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Garza and Vela Memorandum Opinion Per Curiam

Appellant, Robert H. Twist, attempted to perfect an appeal from a judgment

entered by the 275th District Court of Hidalgo County, Texas, in cause number

C-2249-10-E. We dismiss for want of jurisdiction. Judgment in this cause was signed on March 19, 2012. A motion for new trial was

filed on April 10, 2012. Appellant filed a notice of appeal on July 5, 2012.

On July 17, 2012, the Clerk of this Court notified appellant that it appeared that the

appeal was not timely perfected. Appellant was advised that the appeal would be

dismissed if the defect was not corrected within ten days from the date of receipt of the

Court=s directive. On July 20, 2012, appellees filed a motion to dismiss for lack of

jurisdiction. Appellant has not filed a response.

Texas Rule of Appellate Procedure 26.1 provides that an appeal is perfected when

notice of appeal is filed within thirty days after the judgment is signed, unless a motion for

new trial is timely filed. TEX. R. APP. P. 26.1(a)(1). Where a timely motion for new trial

has been filed, notice of appeal shall be filed within ninety days after the judgment is

signed. TEX. R. APP. P. 26.1(a).

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 (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.BAmarillo 2004, no pet.); In re B.G., 104 S.W.3d 565, 567

(Tex. App.BWaco 2002, no pet.).

Appellant timely filed a motion for new trial. Therefore, his notice of appeal was

due to have been filed on or before June 18, 2012. Appellant’s notice of appeal was not

2 filed until July 5, 2012, which is outside the fifteen days set forth in rule 26.1. See TEX. R.

APP. P. 26.1(a).

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

appellant=s failure to timely perfect his appeal, is of the opinion that the appeal should be

dismissed for want of jurisdiction. Appellees’ motion to dismiss is GRANTED.

Accordingly, the appeal is hereby DISMISSED FOR WANT OF JURISDICTION. See

TEX. R. APP. P. 42.3(a). All pending motions are likewise DISMISSED FOR WANT OF

JURISDICTION.

PER CURIAM

Delivered and filed the 21st day of August, 2012.