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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
v.
ROSETTA RESOURCES, LTD., a/k/a Rosetta Resources, Inc., Eusebio Cantu Torres, Eusebio Torres, Jr., Gladiator Energy Services, LLC, Appellees

         From the 293rd Judicial District Court, Dimmit County, Texas Trial Court No. 12-07-11738-DCV Honorable David Peeples, Judge Presiding

          Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice

         DISMISSED AS TO HAKIM DERMISH

          MEMORANDUM OPINION

          PER CURIAM

         The 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 id.

         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, 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 ...


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