Walter Allen Mosley III v. Davis Bowers, Rachel Kingston, and Wellpath Recovery Solutions

• Court: Court of Appeals of Texas
• Decided: January 7, 2020
• Docket: 07-19-00420-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-19-00420-CV ________________________

WALTER ALLEN MOSLEY III, APPELLANT

V.

DAVID BOWERS, RACHEL KINGSTON, AND WELLPATH RECOVERY SOLUTIONS, APPELLEES

On Appeal from the County Court Lamb County, Texas Trial Court No. CC-3360; Honorable James M. DeLoach, Presiding

January 7, 2020

MEMORANDUM OPINION Before PIRTLE and PARKER and DOSS, JJ.

Appellant, Walter Allen Mosley III, appearing pro se, appeals from the trial court’s

Order of Dismissal. Because Mosley filed his notice of appeal untimely, we dismiss the

appeal for want of jurisdiction. The trial court signed the Order of Dismissal on September 17, 2019. Mosley did

not file a motion for new trial or a motion to modify the judgment. Accordingly, his notice

of appeal was due thirty days after the judgment was signed, i.e., by October 17, 2019.

TEX. R. APP. P. 26.1(a). Mosley filed his notice of appeal on October 21, 2019.1

A timely notice of appeal is essential to invoking this court’s jurisdiction. See TEX.

R. APP. P. 25.1(b), 26.1. We may extend the time to file a notice of appeal by fifteen days

if an appellant files a notice of appeal and a motion for an extension of time that

reasonably explains the need for an extension. TEX. R. APP. P. 26.3, 10.5(b). A motion

for extension is implied if the notice of appeal is filed within fifteen days after the notice

deadline. Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). However, an appellant

must still reasonably explain the delay in filing the notice of appeal when a motion for

extension is implied. Jones v. City of Houston, 976 S.W.2d 676, 677 (Tex. 1998).

Mosley filed his notice of appeal within fifteen days of the appellate deadline but

did not file a motion for an extension of time. By letter of December 4, 2019, we notified

Mosley that a motion for extension was implied and directed him to file a written response

explaining why his notice of appeal was filed untimely. We advised Mosley that if he did

not file a response by December 16, we would dismiss the appeal for want of jurisdiction.

Mosley has not filed a response to date.

Because Mosley failed to provide a reasonable explanation for his untimely notice

of appeal, we cannot grant an implied motion for extension. See TEX. R. APP. P. 26.3,

1 Mosley mailed his notice of appeal to the county clerk for filing. The envelope was postmarked October 18, 2019. Because Mosley’s notice of appeal was mailed a day after the notice of appeal deadline, it is not considered timely filed under Rule of Appellate Procedure 9.2(b).

2 10.5(b); Phillips v. Gunn, No. 07-14-00094-CV, 2014 Tex. App. LEXIS 4027, at *2 (Tex.

App.—Amarillo Apr. 11, 2014, no pet.) (mem. op.). Therefore, his late notice of appeal

failed to invoke the jurisdiction of this court. Id.

Accordingly, we dismiss the purported appeal for want of jurisdiction. TEX. R. APP.

P. 42.3(a).

Per Curiam