David Gillespie v. A.L. Hernden and Frederick R. Zlotoucha

A.L. s

Fourth Court of Appeals
San Antonio, Texas
September 15, 2015

No. 04-15-00405-CV

David GILLESPIE,
Appellant

v.

A.L. HERNDEN and Frederick R. Zlotoucha,
Appellees

From the 408th Judicial District Court, Bexar County, Texas
Trial Court No. 2013-CI-10278
Honorable Cathleen M. Stryker, Judge Presiding

ORDER
The trial court signed a final judgment on April 2, 2015. Appellant David Gillespie filed
a timely motion for new trial on May 1, 2015. Therefore, the notice of appeal was due to be filed
on July 1, 2015. See TEX. R. APP. P. 26.1(a). However, appellant filed a notice of appeal on July
3, 2015. A motion for extension of time to file the notice of appeal was due on July 16, 2015. See
TEX. R. APP. P. 26.3. Although appellant filed a notice of appeal within the fifteen-day grace
period allowed by Rule 26.3, he did not file a motion for extension of time.

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 Texas Rule of Appellate Procedure
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). However, the appellant must offer a reasonable explanation for failing
to file the notice of appeal in a timely manner. See id.; TEX. R. APP. P. 26.3, 10.5(b)(1)(C).

We, therefore, ORDER appellant to file, within fifteen days from the date of this order, a
response presenting a reasonable explanation for failing to file the notice of appeal in a timely
manner. If appellant fails to respond within the time provided, the appeal will be dismissed. See
TEX. R. APP. P. 42.3(c).

_________________________________
Karen Angelini, Justice
 IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 15th day of September, 2015.

___________________________________
Keith E. Hottle
Clerk of Court