Summary
holding that late-filed notice of appeal, filed within 15 days after deadline, together with subsequently filed reasonable explanation, was sufficient to vest appellate court with jurisdiction
Summary of this case from Tanner v. McCarthyOpinion
No. 01-99-00171-CV.
June 10, 1999
Appeal from the 280th District Court, Harris County, Tony Lindsay, J.
Harold Eisenman, Houston, for Appellant.
Roger L. McCleary, Beirne, Maynard Parsons, L.L.P., Houston, TX, E. Michelle Bohreer, Boyar, Simon Miller, Houston, TX., for Appellee.
Panel consists of Chief Justice SCHNEIDER and Justices HEDGES and ANDELL.
ORDER
This is an appeal from an order signed on June 8, 1998 granting appellee's motion for summary judgment, which became final when an order was signed on November 13, 1998 severing appellee from the trial court cause. A motion for new trial was timely filed; however, appellants filed their notice of appeal on February 18, 1999, seven days late. See TEX.R.APP.P. 26.1(a)(1). Appellants did not file a motion for an extension of time to file their notice of appeal. See TEX.R.APP.P. 26.3.
Although we construe a notice of appeal filed beyond the time allowed by rule 26.1(a)(1), but within the 15-day period allowed under TEX.R.APP.P. 26.3, to imply a motion for an extension of time, it is still necessary for an appellant to offer a reasonable explanation for its failure to timely file a notice of appeal. See Jones v. City of Houston, 976 S.W.2d 676, 677 (Tex. 1998) (applying Verburgt holding to pauper's affidavit filed in lieu of appeal bond); Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (under predecessor rule of rule 26.3, motion for extension of time necessarily implied when appellant acting in good faith files appeal bond within 15-day extension period).
Unless within 15 days of the date of this order, appellants file a explanation reasonably explaining their failure to timely file their notice of appeal, this appeal will be dismissed for want of jurisdiction. See Harris v. Borne, 933 S.W.2d 535, 536 (Tex.App.-Houston [1st Dist.] 1995) (order) (for court to grant extension to perfect appeal, appellant must file the instrument; required to perfect appeal and extension motion within the time required by appellate rules); TEX.R.APP.P. 42.3(a).
It is so ORDERED.