Ali Kafi Ford v. Edgar A. Hulipas ( 2014 )

Order filed December 9, 2014
In The
Fourteenth Court of Appeals
NO. 14-14-00728-CV
ALI KAFI FORD, Appellant
V.
EDGAR A. HULIPAS, ET AL, Appellee
On Appeal from the 412th District Court
Brazoria County, Texas
Trial Court Cause No. 78218I
ORDER
This court issued its opinion and judgment in this case on November 13,
2014. Texas Rule of Appellate Procedure 49.1 provides for the filing of a motion
for rehearing within fifteen days after a court of appeals’ judgment or order is
rendered. Tex. R. App. Proc. 49.1. Appellant filed a motion for rehearing on
December 4, 2014, more than 15 days after this court’s judgment was rendered.1
“A court of appeals may extend the time for filing a motion for rehearing or
en banc reconsideration if a party files a motion complying with Rule 10.5(b) no
1
According to appellant’s motion, it was placed in the prison mail on December 4, 2014.
later than 15 days after the last date for filing the motion.” Tex. R. App. P. 49.8. A
party seeking an extension of time in the court of appeals is required to file a
motion specifically stating the facts that reasonably explain the need for an
extension. Rios v. Calhoon, 889 S.W.2d 257, 259 (Tex. 1994); see also Tex. R.
App. P. 10.5(b)(1)(C) (requiring motion to extend time to include facts relied on to
reasonably explain the need for an extension). No motion for extension of time was
filed in this case, however.
The Texas Supreme Court has consistently treated minor procedural
mistakes with leniency to preserve appellate rights. See,; Verburgt v. Dorner, 959
S.W.2d 615, 616-17 (Tex. 1997) (implying extension of time when a party perfects
an appeal in good faith within the 15-day period for filing an extension). Thus, a
motion for extension of time can be implied when a motion for rehearing is filed
within the 15-day period for filing a motion for extension of time if the appellant
thereafter files a motion complying with Rule 10.5(b)(1) that contains a reasonable
explanation to support the late filing. See Houser v. McElveen, 243 S.W.3d 646,
647 (Tex. 2008); see also Miller v. Greenpark Surgery Ctr. Assoc., Ltd., 974
S.W.2d 805, 807 (Tex. App.—Houston [14th Dist.] 1998, no pet.) (implying
extension but requiring reasonable explanation).
Accordingly, unless appellant/appellee files with the clerk of this court a
motion that complies with Texas Rule of Appellate Procedure 10.5(b)(1) and
provides a reasonable explanation for the late filing of the party’s motion for
rehearing within 10 days of the date of this order, the court will deny the motion
for rehearing as untimely.
PER CURIAM