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Candela Organization, L.L.C. v. Eon Industries, L.L.C.

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

August 31, 2017

CANDELA ORGANIZATION, L.L.C. AND ROGELIO VELA, Appellants,
v.
EON INDUSTRIES, L.L.C., Appellee.

         On appeal from the County Court at Law No. 1 of Hidalgo County, Texas.

          Before Justices Rodriguez, Contreras, and Benavides

          MEMORANDUM OPINION

          GINA M. BENAVIDES, Justice

         Appellants Candela Organization, L.L.C. and Rogelio Vela attempted to perfect an appeal from a final judgment rendered in favor of Eon Industries, L.L.C. The judgment in this cause was signed on July 11, 2017. Appellants did not file a motion for new trial and filed their notice of appeal in this Court on August 15, 2017. On August 16, 2017, the Clerk of this Court notified appellants that the appeal did not appear to have been timely perfected so that steps could be taken to correct the defect, if it could be done.

          Appellants were advised that, if the defect was not corrected within ten days from the date of receipt of this Court's letter, the appeal would be dismissed. In response, appellants have filed a motion for additional time to file the notice of appeal. They contend that they were unable to file their notice of appeal timely because they did not receive notice of the trial court's judgment and this constitutes "good cause" for extending the time to file the notice of appeal under Texas Rule of Appellate Procedure 4.2. See Tex. R. App. P. 4.2 (delineating the procedure for obtaining additional time to file documents when a party has not received notice of the trial court's judgment in civil cases). Appellants request an extension of time until September 14, 2017, to file their notice of appeal. Appellee has filed a response in opposition to the motion for extension of time. Appellee contends that appellants received electronic notice of the judgment and that they have not provided a reasonable explanation for the failure to timely file the notice of appeal. We conclude that the notice of appeal was not timely filed and we dismiss the appeal for lack of jurisdiction.

         Texas Rule of Appellate Procedure 26.1 provides that an appeal is perfected when notice of appeal is filed within thirty days after the judgment is signed, unless a motion for new trial is timely filed. Tex.R.App.P. 26.1(a)(1). Where a timely motion for new trial has been filed, the notice of appeal shall be filed within ninety days after the judgment is signed. 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, 617-19 (Tex. 1997) (construing the predecessor to Rule 26). However, the appellant must provide a reasonable explanation for the late filing: it is not enough to simply file a notice of appeal. Id.; Woodard v. Higgins, 140 S.W.3d 462, 462 (Tex. App.-Amarillo 2004, no pet.); In re B.G., 104 S.W.3d 565, 567 (Tex. App.-Waco 2002, no pet.).

         Texas Rule of Civil Procedure 306a(3) requires a trial court clerk immediately to notify the parties or their attorneys, by first class mail, of the signing of an appealable order. See Tex. R. Civ. P. 306a(3). When more than twenty days have passed between the date that the trial court signs the order and the date that a party receives notice or acquires actual knowledge of the signing, the period for filing a notice of appeal may be extended to the earlier of the date the party received notice or acquired actual knowledge of the signing. Tex.R.App.P. 4.2(a)(1); see Pilot Travel Ctrs., LLC v. McCray, 416 S.W.3d 168, 176 (Tex. App.-Dallas 2013, no pet.). To benefit from this extended time period, appellant must have proven, in the trial court on sworn motion and notice, the date on which he first received notice or acquired actual knowledge of the July 11, 2017 judgment and that the date was more than twenty days after the date the order was signed. See Tex. R. Civ. P. 306a(5); Tex.R.App.P. 4.2(a)(1), (b). Further, the trial court must have signed a written order finding the date when appellant first received notice or acquired actual knowledge that the judgment was signed. See Tex. R. App. P. 4.2(c); Moore Landrey, L.L.P. v. Hirsch & Westheimer, P.C., 126 S.W.3d 536, 540 (Tex. App.- Houston [1st Dist.] 2003, no pet.); see also Cantu v. Longoria, 878 S.W.2d 131, 132 (Tex. 1994).

         Based on the notice of appeal and the appellants' response to this Court's notice regarding the defect, appellants have not obtained the trial court order and finding required by Texas Rule of Appellate Procedure 4.2(c). Without that order and finding, the time for filing a notice of appeal of the judgment was not extended. See Nedd- Johnson v. Wells Fargo Bank, N.A., 338 S.W.3d 612, 613 (Tex. App.-Dallas 2010, no pet.); see also Johnson v. Linebarger Goggan Blair & Sampson, LLP, No. 01-15-00950-CV, 2017 WL 1173886, at *3 (Tex. App.-Houston [1st Dist.] Mar. 30, 2017, no pet. h.) (mem. op.). Because appellants did not follow the procedures required by Texas Rule of Civil Procedure 306a and Texas Rule of Appellate Procedure 4.2 to gain additional time to perfect their appeal, we lack jurisdiction over his attempted appeal. See Mem'l Hosp. v. Gillis, 741 S.W.2d 364, 365 (Tex. 1987) (per curiam).

         The Court, having examined and fully considered the documents on file and appellants' failure to timely perfect their appeal, is of the opinion that the appeal should be dismissed for want of jurisdiction. Accordingly, we DENY appellants' motion for additional time to file the notice of ...


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