Commercial Insulation, L.L.C. and Brad Ernest Keller, Appellants, v. General Insulation Company, L.L.C., Appellee, (2016)

MEMORANDUM OPINION

Appellants, Commercial Insulation, L.L.C. and Brad Ernest Keller, attempted to perfect an appeal from a judgment entered by the 332nd District Court of Hidalgo County, Texas, in cause number C–1165–15–F.  Judgment in this cause was signed on September 11, 2015.  A motion for new trial was filed on October 9, 2015.  Appellants filed a notice of appeal on December 28, 2015.

Texas Rule of Appellate Procedure 26.1 provides that an appeal is perfected when notice of appeal is filed within thirty days after the judgment is signed, unless a motion for new trial is timely filed.  Tex.R.App. P. 26.1(a)(1).  Where a timely motion for new trial has been filed, notice of appeal shall be filed within ninety days after the judgment is signed.  Tex.R.App. P. 26.1(a).

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, 617–18, 619 (1997) (construing the predecessor to Rule 26).  However, appellant must provide a reasonable explanation for the late filing:  it is not enough to simply file a notice of appeal.  Id.;  Woodard v. Higgins, 140 S.W.3d 462, 462 (Tex.App.Amarillo 2004, no pet.);  In re B.G., 104 S.W.3d 565, 567 (Tex.App.–Waco 2002, no pet.).

Pursuant to Texas Rule of Appellate Procedure 26.1, appellants' notice of appeal was due on December 10, 2015, but was not filed until December 28, 2015.¹  On December 29, 2015, the Clerk of this Court notified appellant of this defect so that steps could be taken to correct the defect, if it could be done.  Appellant was advised that, if the defect was not corrected within ten days from the date of receipt of this Court's letter, the appeal would be dismissed.  To date, no response has been received from appellants providing a reasonable explanation for the late filing of the notice of appeal.

The Court, having examined and fully considered the documents on file, appellants' failure to timely perfect his appeal, and appellants' failure to respond to this Court's notice, is of the opinion that the appeal should be dismissed for want of jurisdiction.  Accordingly, the appeal is DISMISSED FOR WANT OF JURISDICTION.  See Tex.R.App. P. 42.3(a),(c).

FOOTNOTES

1.   Because the fifteen-day grace period fell on December 25, 2015, appellants had until December 28, 2015 to file the notice of appeal.  See Tex.R.App. P. 4.1.

Memorandum Opinion Per Curiam