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Burns v. Rosetta Resources, Ltd.
Court of Appeals of Texas, Fourth District, San Antonio
January 11, 2017
Alvin M. BURNS, I.M. Burns, Dimmit County, Hakim Dermish, Robert L. Ramirez and Edward J. Dryden, Appellants
ROSETTA RESOURCES, LTD., a/k/a Rosetta Resources, Inc., Eusebio Cantu Torres, Eusebio Torres, Jr., Gladiator Energy Services, LLC, Appellees
the 293rd Judicial District Court, Dimmit County, Texas Trial
Court No. 12-07-11738-DCV Honorable David Peeples, Judge
Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez,
Justice Luz Elena D. Chapa, Justice
AS TO HAKIM DERMISH
trial court's final judgment was signed on June 22, 2016.
Because a timely motion for new trial was filed, notice of
appeal was due no later than September 20, 2016. Tex.R.App.P.
26.1(a)(1). Any motion for extension of time to file the
notice of appeal was due on October 5, 2016, fifteen days
after the deadline for filing notice of appeal. Tex.R.App.P.
26.3. Appellant Hakim Dermish filed a late notice of appeal
on September 23, 2016. His notice of appeal was, however,
filed within the fifteen-day grace period allowed by Rule
26.3. See Tex. R. App. P. 26.3(a) (permitting an
appellant to file a late notice of appeal in the trial court
within 15 days after the deadline and requiring the filing of
a motion for extension of time to be filed in the appellate
court). Dermish did not file a motion for extension of time
to file a late notice of appeal in this court. See
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 (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). Therefore, on October 27, 2016, we issued a
show cause order instructing appellant Hakim Dermish to file
a written response presenting a reasonable explanation for
his failure to file his notice of appeal in a ...