Union Pacific Railroad Company v. Richard Ruby and Ronald Zimmerman

• Court: Court of Appeals of Texas
• Decided: November 10, 2011
• Docket: 14-11-00931-CV
• Status: Published

Opinion

Order filed November 10, 2011.

In The

Fourteenth Court of Appeals _____________

NO. 14-11-00931 -CV ______________

UNION PACIFIC RAILROAD COMPANY, Appellant

V.

RICHARD RUBY and RONALD ZIMMERMAN, Appellee

On Appeal from the 11th District Court In re: Asbestos MDL Harris County, Texas Trial Court Cause No. 2011-27625

ORDER

This is an accelerated appeal from an order signed September 9, 2011. Appellant’s notice of appeal was due September 29, 2001, but it was not filed until October 5, 2011, within 15 days of its due. See Tex. R. App. P. 26.1(b). A motion for extension of time is Anecessarily implied@ when the perfecting instrument is filed within fifteen 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 still 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.CHouston [14th Dist.] 1998, no pet.). Alternatively, appellant may provide proof of timely mailing of the notice of appeal. See Tex. R. App. P. 9.2(b).

Accordingly, we ORDER appellant to file a proper motion to extend time to file the notice of appeal, or proof of timely mailing of 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); 9.2(b). If appellant does not comply with this order, we will dismiss the appeal. See Tex. R. App. P. 42.3.

PER CURIAM