Sonia Barboza v. Morrell Masonry Supply, Inc.

Opinion

Motion Granted, Memorandum Opinion filed October 18, 2018 Withdrawn, Appeal Reinstated, and Order filed November 13, 2018.

In The

Fourteenth Court of Appeals ____________

NO. 14-18-00727-CV ____________

SONIA BARBOZA, Appellant

V.

MORRELL MASONRY SUPPLY, INC., Appellee

On Appeal from the 129th District Court Harris County, Texas Trial Court Cause No. 2017-20565

ORDER

On October 18, 2018, this court issued an opinion dismissing this appeal for want of prosecution for failure to pay for the clerk’s record. On October 30, 2018, appellant filed a motion stating that she had paid for the clerk’s record. On November 6, 2018, the clerk’s record was filed. Appellant’s motion is granted.

This court’s opinion filed October 18, 2018 is withdrawn, and our judgment of that date is vacated. The appeal is ordered reinstated. The clerk’s record reflects that this is an appeal from a judgment signed May 9, 2018. Appellant filed a timely post-judgment motion extending appellate timetables. The notice of appeal was due September 7, 2018. See Tex. R. App. P. 26.1. Appellant, however, filed the notice of appeal on September 17, 2018, a date within 15 days of the due date for the notice of appeal. A motion for extension of time is necessarily implied when the perfecting instrument is filed within 15 days of its due date. Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). Appellant did not file a motion to extend time to file the notice of appeal. While an extension may be implied, appellant is obligated to come forward with a reasonable explanation to support the late filing. See Miller v. Greenpark Surgery Center Assocs., Ltd., 974 S.W.2d 805, 808 (Tex. App.—Houston [14th Dist.] 1998, no pet.).

Accordingly, we reinstate the appeal and ORDER appellant to file a proper motion to extend time to file the notice of appeal on or before 10 days after the date of this order. See Tex. R. App. P. 26.3; 10.5(b). If appellant does not comply with this order, we will dismiss the appeal. See Tex. R. App. P. 42.3.

PER CURIAM

Panel consists of Justices Donovan, Wise, and Jewell.