Victor Ramos v. Gustavo Guerra, Jr.

Court of Appeals of Texas

Victor Ramos v. Gustavo Guerra, Jr.

DecidedNovember 2, 2017

Docket04-17-00485-CV

StatusPublished

This text of Victor Ramos v. Gustavo Guerra, Jr. (Victor Ramos v. Gustavo Guerra, Jr.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Victor Ramos v. Gustavo Guerra, Jr., (Tex. Ct. App. 2017).

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Fourth Court of Appeals San Antonio, Texas November 2, 2017

No. 04-17-00485-CV

Victor RAMOS, Appellant

v.

Gustavo GUERRA, Jr., Appellee

From the 406th Judicial District Court, Webb County, Texas Trial Court No. 2017CVT000103-D4 Honorable John D. Gabriel, Jr., Judge Presiding

ORDER The trial court signed a final judgment in this appeal on June 15, 2017. A timely motion for new trial was filed extending the deadline to file the notice of appeal to September 13, 2017. Appellant timely filed his notice of appeal on July 12, 2017.

On October 16, 2017, appellee filed a notice of appeal stating his intent to appeal the trial court’s order denying his motion to modify, correct and/or reform the final judgment. Appellate deadlines run from the date the final judgment is signed, not from the date the trial court denies a post-judgment motion. See TEX. R. APP. P. 26.1. Because appellee seeks to file a cross-appeal, he was required to file his notice of appeal “within the applicable period [for filing a notice of appeal] or 14 days after the first filed notice of appeal, whichever is later.” See id. at 26.1(d). Accordingly, appellee’s notice of appeal was due to be filed on September 13, 2017.

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, 617 (Tex. 1997) (construing the predecessor to Rule 26). An implied motion for extension of time would extend the deadline for filing a notice of appeal in this appeal to September 28, 2017. Appellee did not, however, file his notice of appeal until October 16, 2017.

It is therefore ORDERED that appellee show cause in writing within two weeks from the date this order is signed why his cross-appeal should not be dismissed for lack of jurisdiction. _________________________________ Sandee Bryan Marion, Chief Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 2nd day of November, 2017.

___________________________________ KEITH E. HOTTLE, Clerk of Court

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Fourth Court of Appeals San Antonio, Texas November 2, 2017

No. 04-17-00485-CV

Victor RAMOS, Appellant

v.

Gustavo GUERRA, Jr., Appellee

From the 406th Judicial District Court, Webb County, Texas Trial Court No. 2017CVT000103-D4 Honorable John D. Gabriel, Jr., Judge Presiding

ORDER The trial court signed a final judgment in this appeal on June 15, 2017. A timely motion for new trial was filed extending the deadline to file the notice of appeal to September 13, 2017. Appellant timely filed his notice of appeal on July 12, 2017.

On October 16, 2017, appellee filed a notice of appeal stating his intent to appeal the trial court’s order denying his motion to modify, correct and/or reform the final judgment. Appellate deadlines run from the date the final judgment is signed, not from the date the trial court denies a post-judgment motion. See TEX. R. APP. P. 26.1. Because appellee seeks to file a cross-appeal, he was required to file his notice of appeal “within the applicable period [for filing a notice of appeal] or 14 days after the first filed notice of appeal, whichever is later.” See id. at 26.1(d). Accordingly, appellee’s notice of appeal was due to be filed on September 13, 2017.

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, 617 (Tex. 1997) (construing the predecessor to Rule 26). An implied motion for extension of time would extend the deadline for filing a notice of appeal in this appeal to September 28, 2017. Appellee did not, however, file his notice of appeal until October 16, 2017.

It is therefore ORDERED that appellee show cause in writing within two weeks from the date this order is signed why his cross-appeal should not be dismissed for lack of jurisdiction. _________________________________ Sandee Bryan Marion, Chief Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 2nd day of November, 2017.

___________________________________ KEITH E. HOTTLE, Clerk of Court

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