Veritek LLC v. TBI Construction Services LLC

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-20-00287-CV ___________________________

VERITEK LLC, Appellant

V.

TBI CONSTRUCTION SERVICES LLC, Appellee

On Appeal from County Court at Law No. 3 Tarrant County, Texas Trial Court No. 2019-007906-3

Before Kerr, Birdwell, and Bassel, JJ. Memorandum Opinion by Justice Kerr MEMORANDUM OPINION

Veritek LLC attempts to appeal from the trial court’s May 4, 2020 final

judgment. Because Veritek timely moved for reconsideration of the trial court’s

judgment, its notice of appeal was due August 3, 2020. See Tex. R. App. P. 4.1(a),

26.1(a)(1). But Veritek did not file its notice of appeal until August 14, 2020, making it

untimely. See Tex. R. App. P. 26.1(a)(1).

On September 16, 2020, we notified the parties by letter of our concern that we

lack jurisdiction over this appeal because the notice of appeal was untimely filed. See

Tex. R. App. P. 26.1. We warned that we could dismiss this appeal for want of

jurisdiction unless Veritek or any party wanting to continue the appeal filed a response

by September 28, 2020, showing a reasonable explanation for the late filing of the

notice of appeal. See Tex. R. App. P. 10.5(b), 26.3(b), 42.3(a), 43.2(f). We have

received no response.

The time for filing a notice of appeal is jurisdictional in this court, and without

a timely filed notice of appeal or a timely filed extension request, we must dismiss the

appeal. See Tex. R. App. P. 2, 25.1(b), 26.1, 26.3; Jones v. City of Houston, 976 S.W.2d

676, 677 (Tex. 1998); Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). A motion

for extension of time is necessarily implied when, as here, an appellant acting in good

faith files a notice of appeal beyond the time allowed by Rule 26.1 but within the 15-

day period in which the appellant would be entitled to move to extend the filing

deadline under Rule 26.3. See Jones, 976 S.W.2d at 677; Verburgt, 959 S.W.2d at 617; see

2 also Tex. R. App. P. 26.1, 26.3. But even when an extension motion is implied, the

appellant still must reasonably explain the need for an extension. See Jones, 976 S.W.2d

at 677; Verburgt, 959 S.W.2d at 617.

Because Veritek’s notice of appeal was untimely and Veritek did not provide a

reasonable explanation for needing an extension, we dismiss this appeal for want of

jurisdiction. See Tex. R. App. P. 42.3(a), 43.2(f), 44.3; see Hanson v. Lennar Homes of Tex.

Land & Constr., Ltd., No. 02-11-00513-CV, 2012 WL 407276, at *1 (Tex. App.—Fort

Worth Feb. 9, 2012, no pet.) (mem. op.).

/s/ Elizabeth Kerr Elizabeth Kerr Justice

Delivered: January 7, 2021