William G. Holloway v. Irma Cantu Holloway ( 2010 )

NUMBER 13-10-00433-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
___________________________________________________________
WILLIAM G. HOLLOWAY, APPELLANT,
v.
IRMA CANTU HOLLOWAY, APPELLEE.
____________________________________________________________
On Appeal from the 444th District Court
of Cameron County, Texas.
____________________________________________________________
MEMORANDUM OPINION
Before Justices Yañez, Garza, and Benavides
Memorandum Opinion Per Curiam
Appellant, William G. Holloway, attempted to perfect an appeal from a judgment
entered by the 444th District Court of Cameron County, Texas, in cause number
1988-12-7528-H. Judgment in this cause was signed on March 29, 2010. A motion for
new trial was filed on April 28, 2010. Pursuant to Texas Rule of Appellate Procedure
26.1, appellant=s notice of appeal was due on June 28, 2010, but was not filed until July
26, 2010.
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, notice of appeal shall be filed within ninety days after the judgment is
signed. TEX. R. APP. P. 26.1(a).
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, 617-18, 619 (1997) (construing the
predecessor to Rule 26). However, 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.BAmarillo 2004, no pet.); In re B.G., 104 S.W.3d 565, 567
(Tex. App.BWaco 2002, no pet.).
On August 4, 2010, the Clerk of this Court notified appellant of this defect so that
steps could be taken to correct the defect, if it could be done. Appellant was 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. Appellant responded by filing an “Amended
Motion to Cure Defect is Notice of Appeal,” stating that appellant did not know whether a
motion for new trial was granted until July 23, 2010, when he went to the District Clerk’s
office. Appellant asserts that the earliest he could have filed a notice of appeal was
within ninety days of that date and by filing his notice of appeal within those ninety days,
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he has effectively cured any defect in his notice of appeal. Appellee has filed a motion to
dismiss for want of jurisdiction, notice of defect in notice of appeal that cannot be
corrected, and response to motion to cure defect.
Although appellant has responded with an explanation regarding filing the notice of
appeal, appellant’s notice of appeal was filed beyond the fifteen-day grace period
provided by rule 26.3. The Court, having examined and fully considered the documents
on file and appellant=s failure to timely perfect his appeal, is of the opinion that the appeal
should be dismissed for want of jurisdiction. Appellant’s amended motion to cure defect
is DENIED. Appellee’s motion to dismiss for want of jurisdiction is GRANTED.
Accordingly, the appeal is hereby DISMISSED FOR WANT OF JURISDICTION. See
TEX. R. APP. P. 42.3(a).
PER CURIAM
Delivered and filed the
21st day of October, 2010.
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