Rufina Reyes Yanez v. American General Life Insurance Company

• Court: Court of Appeals of Texas
• Decided: October 5, 2015
• Docket: 04-15-00548-CV
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas October 5, 2015

No. 04-15-00548-CV

Rufina Reyes YANEZ, Appellant

v.

AMERICAN GENERAL LIFE INSURANCE COMPANY, Appellee

From the 341st Judicial District Court, Webb County, Texas Trial Court No. 2014CVF000504-D3 Honorable Rebecca Ramirez Palomo, Judge Presiding

ORDER On September 16, 2015, appellee filed a motion to dismiss arguing appellant’s notice of

appeal was filed impermissibly late pursuant to Texas Rule of Appellate Procedure 26(a)(1), and

appellant failed to file a timely motion for extension of time.

Appellant failed to file a reply to appellee’s motion to dismiss, but did file a motion to

abate the appeal. This Court may not abate an appeal if the notice of appeal was filed late.

Further, appellant has failed to pay the filing fee.

Appellant filed a notice of appeal on September 3, 2015 and a motion for extension of

time on the same date. The trial court’s judgment was signed on July 20, 2015. It thus appears

that neither document was filed within the time allowed for filing a motion for extension of time

to file the notice of appeal. 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 (Tex.1997) (construing the predecessor to Rule 26). However,

once the period for granting a motion for extension of time has passed, a party can no longer

invoke the appellate court’s jurisdiction. Id.

It is therefore ORDERED that appellant show cause in writing within fifteen days from

the date of this order why this appeal should not be dismissed for lack of jurisdiction. It is

further ORDERED that appellant to show cause in writing within fifteen days from the date of this

order that either: (1) the filing fee has been paid; or (2) appellant is entitled to appeal without paying

the filing fee.

If appellant fails to respond within the time provided, the appeal will be dismissed for

want of prosecution or for failure to pay the filing fee. See TEX. R. APP. P. 5, 42.3(c). The briefing

schedule is suspended pending determination whether this Court holds jurisdiction over this appeal.

_________________________________ Jason Pulliam, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 5th day of October, 2015.

___________________________________ Keith E. Hottle Clerk of Court