Javier H. Perez v. Patricia Villarreal and Israel Villarreal

/s

Fourth Court of Appeals
San Antonio, Texas
March 13, 2014

No. 04-13-00148-CV

Javier H. PEREZ,
Appellant

v.

Patricia VILLARREAL and Israel Villarreal,
Appellee

From the 111th Judicial District Court, Webb County, Texas
Trial Court No. 2011-CVT-000406-D2
Honorable Monica Z. Notzon, Judge Presiding

ORDER
Appellees have filed a motion to dismiss the appeal for want of jurisdiction. Appellees
contend the notice of appeal is untimely. We disagree.

Appellant is appealing a judgment signed January 23, 2013. Appellant did not file a
timely motion that would have extended the appellate timetable. See TEX. R. CIV. P. 329b(g);
TEX. R. APP. P. 26.1(a). Thus, the notice of appeal was due February 22, 2013, or a motion for
extension of time to file the notice of appeal was due fifteen days later on March 11, 2013. See
TEX. R. APP. P. 26.1, 26.3. Appellant did not file a timely notice of appeal or a motion for
extension of time to file the notice of appeal. However, on February 28, 2013, appellant filed a
notice of appeal, which was mailed on February 23, 2014 — one day after the deadline.

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, 615 (Tex. 1997). However, the appellant must offer a reasonable
explanation for failing to file the notice of appeal timely. See id.; TEX. R. APP. P. 26.3,
10.5(b)(1)(C); see also Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 670 (Tex. 1989).
Accordingly, on April 9, 2013, we ordered appellant to file a response offering a reasonable
explanation for failing to file the notice of appeal timely or establishing that the notice was
timely filed. We advised appellant that if he failed to satisfactorily respond within the time
provided, the appeal would be dismissed. See TEX. R. APP. P. 42.3(a), (c).
 On April 22, 2013, appellant filed a response to this court’s Verburgt order. In the
response, appellant stated he failed to timely file the notice of appeal because he did not learn of
the January 23, 2013 judgment until his daughter informed him about it on February 22, 2013.
He filed the notice of appeal the next day. By order dated April 24, 2013, we stated that the
explanation provided by appellant was reasonable, and ordered the appeal retained on the docket.

Based on the foregoing, we find appellees are incorrect in their assertion that we lack
jurisdiction over the appeal. Although appellant’s notice of appeal was mailed one day late, it
was filed within the fifteen–day grace period provided by Rule 26.1(c), and appellant provided
this court with a reasonable explanation for the late filing as required by the supreme court’s
decision in Verburgt. Accordingly, we DENY appellees’ motion to dismiss the appeal for want
of jurisdiction.

The clerk of this court is ordered to send a copy of this order to appellant, who is pro se,
and all counsel.

_________________________________
Marialyn Barnard, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 13th day of March, 2014.

___________________________________
Keith E. Hottle
Clerk of Court