Scott & Julieann Hanson and Nikki & Jeremy Steele v. Lennar Homes of Texas Land & Construction, Ltd. and D.R. Horton - Texas Ltd.

• Court: Court of Appeals of Texas
• Decided: February 9, 2012
• Docket: 02-11-00513-CV
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-11-00513-CV

SCOTT & JULIEANN HANSON AND APPELLANTS NIKKI & JEREMY STEELE

V.

LENNAR HOMES OF TEXAS LAND APPELLEES & CONSTRUCTION, LTD. AND D.R. HORTON - TEXAS LTD.

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FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY

MEMORANDUM OPINION1 ----------

On December 22, 2011, Appellants Scott and Julieann Hanson and Nikki

and Jeremy Steele filed a notice of appeal from the trial court’s judgment, which

was signed on September 19, 2011. A motion for new trial was filed October 19, 2011, making the notice of appeal due December 19, 2011. See Tex. R. App. P.

26.1(a).

1 See Tex. R. App. P. 47.4. On January 3, 2012, we sent a letter to Appellants stating our concern that

we lacked jurisdiction over this appeal because Appellants’ notice of appeal was

not timely filed. We informed Appellants that unless they, or any party desiring to

continue the appeal, filed a response showing a reasonable explanation for the

late filing of the notice of appeal on or before January 13, 2012, the appeal could

be dismissed for want of jurisdiction. See Tex. R. App. P. 42.3(a), 44.3. To date,

we have received no response showing any reasonable explanation for the late

filing of the notice of appeal.

The time for filing a notice of appeal is jurisdictional in this court, and

absent a timely-filed notice of appeal or extension request, we must dismiss the appeal. See Tex. R. App. P. 2, 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 appellant would be entitled to move to

extend the filing deadline under rule 26.3. See Jones, 976 S.W.2d at 677;

Verburgt, 959 S.W.2d at 617; see also Tex. R. App. P. 26.1, 26.3. However,

when a motion for extension is implied, it is still necessary for the appellant to reasonably explain the need for an extension. See Jones, 976 S.W.2d at 677;

Verburgt, 959 S.W.2d at 617.

2 Because Appellants’ notice of appeal was untimely and because

Appellants did not provide a reasonable explanation for needing an extension,

we dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 2, 25.1(b),

26.3; 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.).

SUE WALKER JUSTICE

PANEL: WALKER, MCCOY, and MEIER, JJ.

DELIVERED: February 9, 2012