Herbert L. Polinard, Jr. v. Jo Ann Karambis, Margaret Comparin, Ronaldo Dunagan, Lynda C. Spence, and EXP Realty LLC ( 2021 )

Fourth Court of Appeals
San Antonio, Texas
August 30, 2021
No. 04-21-00251-CV
Herbert L. POLINARD, Jr.,
Appellant
v.
Jo Ann KARAMBIS, Margaret Comparin, Ronaldo Dunagan, Lynda C. Spence, and EXP
Realty LLC,
Appellees
From the 166th Judicial District Court, Bexar County, Texas
Trial Court No. 2018-CI-11887
Honorable Antonia Arteaga, Judge Presiding
ORDER
On August 11, 2021, we issued an opinion and judgment dismissing this appeal for want
of prosecution based on appellant’s failure to pay the filing fee for the appeal. See TEX. R. APP.
P. 42.3(b). Appellant thereafter paid the filing fee and requested reinstatement of the appeal,
citing oversight by his counsel. Accordingly, on our own motion, we WITHDRAW our prior
opinion and judgment issued on August 11, 2021 and REINSTATE this appeal on our docket.
See TEX. R. APP. P. 19.1 (court of appeals’ plenary power). It is ORDERED that appellant’s
brief is due on or before September 24, 2021. See TEX. R. APP. P. 38.6(a).
Additionally, the trial court signed a final judgment on March 5, 2021 and the appellant
filed a motion for new trial on April 4, 2021. Therefore, the notice of appeal was due to be filed
on June 3, 2021. See TEX. R. APP. P. 4.1(a), 26.1. A motion for extension of time to file the
notice of appeal was due on June 18, 2021. See TEX. R. APP. P. 26.3. Although appellant filed a
notice of appeal within the fifteen-day grace period allowed by Rule 26.3, he did not file a
motion for extension of time. 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)(1)(C).
It is therefore further ORDERED that appellant file a response presenting a reasonable
explanation for failing to file a notice of appeal in a timely manner on or before September 10,
2021. If appellant fails to respond within the time provided, the appeal will be dismissed. See
TEX. R. APP. P. 42.3(c).
It is so ORDERED August 30, 2021.
PER CURIAM
ATTESTED TO:__________________________
MICHAEL A. CRUZ,
CLERK OF COURT