Sonia Barboza v. Morrell Masonry Supply, Inc.

Motion Granted, Memorandum Opinion filed October 18, 2018 Withdrawn,
Appeal Reinstated, and Order filed November 13, 2018.
In The
Fourteenth Court of Appeals
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NO. 14-18-00727-CV
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SONIA BARBOZA, Appellant
V.
MORRELL MASONRY SUPPLY, INC., Appellee
On Appeal from the 129th District Court
Harris County, Texas
Trial Court Cause No. 2017-20565
ORDER
On October 18, 2018, this court issued an opinion dismissing this appeal for
want of prosecution for failure to pay for the clerk’s record. On October 30, 2018,
appellant filed a motion stating that she had paid for the clerk’s record. On November
6, 2018, the clerk’s record was filed. Appellant’s motion is granted.
This court’s opinion filed October 18, 2018 is withdrawn, and our judgment
of that date is vacated. The appeal is ordered reinstated.
The clerk’s record reflects that this is an appeal from a judgment signed May
9, 2018. Appellant filed a timely post-judgment motion extending appellate
timetables. The notice of appeal was due September 7, 2018. See Tex. R. App. P.
26.1. Appellant, however, filed the notice of appeal on September 17, 2018, a date
within 15 days of the due date for the notice of appeal. A motion for extension of
time is necessarily implied when the perfecting instrument is filed within 15 days of
its due date. Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). Appellant did
not file a motion to extend time to file the notice of appeal. While an extension may
be implied, appellant is obligated to come forward with a reasonable explanation to
support the late filing. See Miller v. Greenpark Surgery Center Assocs., Ltd., 974
S.W.2d 805, 808 (Tex. App.—Houston [14th Dist.] 1998, no pet.).
Accordingly, we reinstate the appeal and ORDER appellant to file a proper
motion to extend time to file the notice of appeal on or before 10 days after the date
of this order. See Tex. R. App. P. 26.3; 10.5(b). If appellant does not comply with
this order, we will dismiss the appeal. See Tex. R. App. P. 42.3.
PER CURIAM
Panel consists of Justices Donovan, Wise, and Jewell.