Southwestern Roofing, Inc. v. Vistacon, Inc.

• Court: Court of Appeals of Texas
• Decided: April 26, 2017
• Docket: 08-17-00068-CV
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS §

SOUTHWESTERN ROOFING, INC., § No. 08-17-00068-CV

Appellant, § Appeal from the

v. § County Court at Law No. 6

VISTACON, INC., § of El Paso County, Texas

Appellee. § (TC# 2010-3455)

ORDER

Pending before the Court is Appellee’s motion to dismiss the appeal for lack of

jurisdiction because Appellant failed to file a motion for extension of time in which to file the

notice of appeal. Appellant filed its notice of appeal within fifteen days after the deadline for

filing the notice of appeal, but it did not file an extension motion. See TEX.R.APP.P. 26.3. Under

the Supreme Court’s decision in Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997), an

extension motion is implied when a party in good faith files a notice of appeal within the fifteen-

day period provided for by Rule 26.3, but the appellant must provide a reasonable explanation

for his failure to timely file its notice of appeal. In Appellant’s response to the motion to

dismiss, counsel explained that the notice of appeal was filed after the deadline but within Rule

26.3’s fifteen-day period because he miscalculated the deadline. We conclude that this

explanation is reasonable. Appellee’s motion to dismiss is denied.

IT IS SO ORDERED this 26th day of April, 2017.

PER CURIAM

Before McClure, C.J., Rodriguez and Palafox, JJ.