Starnet Insurance Company v. Ricetec, Inc.

• Court: Court of Appeals of Texas
• Decided: June 28, 2018
• Docket: 01-18-00536-CV
• Status: Published

Opinion

COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER

Appellate case name: StarNet Insurance Company v. RiceTec, Inc.

Appellate case number: 01-18-00536-CV

Trial court case number: 94416-CV

Trial court: 239th District Court of Brazoria County, Texas

On June 21, 2018, StarNet Insurance Company filed a petition for permissive interlocutory appeal in this Court of an order that is not otherwise appealable. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a), (d) (West 2014); TEX. R. CIV. P. 168; TEX. R. APP. P. 28.3(a). The order StarNet attempts to appeal from was signed on May 22, 2018, and is entitled, “Order granting Plaintiff RiceTec, Inc.’s Amended Traditional Motion for Summary Judgment on the Duty to Defend and denying StarNet’s Motion for Summary Judgment on the Duty to Defend.” With its petition, StarNet filed seven volumes of appendices, and it filed the required docketing statement on June 22, 2018. See TEX. R. APP. P. 28.3(i).

On June 21, 2018, StarNet also filed an unopposed motion to extend time to file petition for permissive interlocutory appeal in this Court on June 21, 2018. Texas Rule of Appellate Procedure 28.3(c) provides that “[t]he petition must be filed within 15 days after the order to be appealed is signed.” TEX. R. APP. P. 28.3(c). Under Rule 28.3(d), “[t]he court of appeals may extend the time to file the petition if the party: (1) files the petition within 15 days after the deadline, and (2) files a motion complying with Rule 10.5(b).” TEX. R. APP. P. 28.3(d).

Because the order StarNet attempts to appeal from was signed by the trial court on May 22, 2018, its deadline to have filed this petition was June 6, 2018, and the 15-day grace period ended on June 21, 2018. See TEX. R. APP. P. 28.3(c), (d). StarNet timely filed both its petition and its motion for an extension of time on June 21, 2018, within the 15-day grace period. See TEX. R. APP. P. 10.5(b), 28.3(d). StarNet contends that it has a “reasonable explanation” for not timely filing the petition because it did not receive any notice from the district clerk and had no knowledge that the trial court had signed the May 22, 2018 order until June 6, 2018, the same day as its deadline for filing this petition. See Hone v. Hanafin, 104 S.W.3d 884, 886 (2003).

Accordingly, StarNet’s motion to extend the time to file its petition for permissive interlocutory appeal is GRANTED because both the petition and motion for an extension of time were filed within the 15-day grace period and the motion provides a reasonable explanation for the 15-day delay. See TEX. R. APP. P. 10.5(b), 26.1(b), 26.3; Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997).

Finally, the Court requests a response from the appellee to the petition. See TEX. R. APP. P. 28.3(f). RiceTec, Inc.’s response, if any, is due within 10 days of the date of this Order. See TEX. R. APP. P. 28.3(j).

It is so ORDERED. Judge’s signature: /s/ Evelyn V. Keyes Acting for the Court Date: June 28, 2018