the City of Helotes, Tom Schoolcraft, Rick Schroder and Ernest Cruz v. Continental Homes of Texas, L.P.

• Court: Court of Appeals of Texas
• Decided: October 23, 2015
• Docket: 04-15-00571-CV
• Status: Published

Opinion

Continental Homes of Texas, /s

Fourth Court of Appeals San Antonio, Texas October 23, 2015

No. 04-15-00571-CV

THE CITY OF HELOTES, Tom Schoolcraft, Rick Schroder and Ernest Cruz, Appellants

v.

CONTINENTAL HOMES OF TEXAS, L.P., Appellee

From the 131st Judicial District Court, Bexar County, Texas Trial Court No. 2013-CI-18405 Honorable Karen H. Pozza, Judge Presiding

ORDER The City of Helotes, Tom Schoolcraft, Rick Schroder, and Ernest Cruz (“appellants”) appeal a judgment signed June 15, 2015. Although the clerk’s record filed with this court contains a docketing statement that indicates a motion for new trial might have been filed on July 14, 2015, the clerk’s record does not include a timely motion that would have extended the appellate timetable. See TEX. R. CIV. P. 329b(g); TEX. R. APP. P. 26.1(a). Thus, the notice of appeal was due July 16, 2015, or a motion for extension of time to file the notice of appeal was due fifteen days later on August 3, 2015. See TEX. R. APP. P. 26.1, 26.3. Appellants did not file a timely notice of appeal or a motion for extension of time to file the notice of appeal. However, on September 11, 2015, appellants filed a 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, 615 (1997) (construing the predecessor to Rule 26). But “once the period for granting a motion for extension of time under Rule [26.3] has passed, a party can no longer invoke the appellate court’s jurisdiction.” Id.

We therefore order a response due by October 29, showing cause why this appeal should not be dismissed for lack of jurisdiction. If appellants fail to satisfactorily respond within the time provided, the appeal will be dismissed. See TEX. R. APP. P. 42.3(a), (c). Appellants have the burden to request the trial court clerk prepare a supplemental clerk’s record containing all necessary pleadings and orders to establish this court’s jurisdiction. Appellants must file a copy of any such request with this court.

All deadlines in this matter are suspended until further order of the court.

___________________________________ Luz Elena D. Chapa, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 23rd day of October, 2015.

___________________________________ Keith E. Hottle Clerk of Court