Joseph Sagastume and Patricia Sagastume v. Wells Fargo Bank, N.A.

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-13-00458-CV

JOSEPH SAGASTUME AND APPELLANTS
PATRICIA SAGASTUME

V.

WELLS FARGO BANK, N.A. APPELLEE

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FROM THE 348TH DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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Appellants Joseph Sagastume and Patricia Sagastume attempt to appeal

from the trial court’s summary judgment signed on November 22, 2013. No post-

judgment motion was filed to extend the appellate deadline, so the notice of

1
See Tex. R. App. P. 47.4.
appeal was due December 23, 2013, but was not filed until December 26, 2013. 2

See Tex. R. App. P. 26.1(a)(1).

On December 30, 2013, we sent a letter to Appellants stating our concern

that we lacked jurisdiction over this appeal because Appellants’ notice of appeal

was not timely filed. We informed Appellants that unless they, or any party

desiring to continue the appeal, filed a response by January 9, 2014, showing a

reasonable explanation for the late filing of the notice of appeal, the appeal could

be dismissed for want of jurisdiction. See Tex. R. App. P. 42.3(a), 44.3. To date,

we have received no response.

The time for filing a notice of appeal is jurisdictional in this court, and

absent a timely-filed notice of appeal or extension request, we must dismiss the

appeal. See Tex. R. App. P. 2, 25.1(b), 26.3; Jones v. City of Houston, 976

S.W.2d 676, 677 (Tex. 1998); Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex.

1997). 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 period in which the appellant would be entitled to move

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We note that Appellants state in their notice of appeal that the trial court’s
order was mailed on or about November 25, 2013, and was received on
November 27, 2013. To the extent that Appellants attempt to gain additional time
to file their notice of appeal based on the date they received the judgment, they
do not meet the requirements of Texas Rules of Civil Procedure 306a(4) and (5),
which set forth the requirements and the procedures to be used when notice is
received more than twenty days after the judgment is signed. See Tex. R. Civ.
P. 306a(4), (5); see also Tex. R. App. P. 4.2(b) (stating that procedure to gain
additional time is governed by Texas Rule of Civil Procedure 306a(5)).

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to extend the filing deadline under rule 26.3. See Jones, 976 S.W.2d at 677;

Verburgt, 959 S.W.2d at 617; see also Tex. R. App. P. 26.1, 26.3. However,

when a motion for extension is implied, it is still necessary for the appellant to

reasonably explain the need for an extension. See Jones, 976 S.W.2d at 677;

Verburgt, 959 S.W.2d at 617.

Because Appellants’ notice of appeal was untimely and because

appellants did not provide any explanation for needing an extension, we dismiss

the appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a), 43.2(f); Jones,

976 S.W.2d at 677; Verburgt, 959 S.W.2d at 617; Chilkewitz v. Winter, 25

S.W.3d 382, 383 (Tex. App.—Fort Worth 2000, no pet.).

PER CURIAM

PANEL: WALKER, MCCOY, and MEIER, JJ.

DELIVERED: March 13, 2014

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