XPO Logistics Freight, LLC v. Ralph Hernandez ( 2018 )

Fourth Court of Appeals
San Antonio, Texas
August 3, 2018
No. 04-18-00511-CV
XPO LOGISTICS FREIGHT, LLC,
Appellant
v.
Ralph HERNANDEZ,
Appellee
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 2017-CI-21366
Honorable Laura Salinas, Judge Presiding
ORDER
Appellant attempts to appeal an order denying a motion to compel arbitration. An appeal
from such an order is accelerated. See TEX. CIV. PRAC. & REM. CODE ANN. § 171.098 (West
2011) (allowing appeal of an order denying a motion to compel arbitration); TEX. R. APP. P.
28.1(a) (stating appeals from interlocutory orders, when allowed, are accelerated).
The trial court signed the order on June 13, 2018. Because this is an accelerated appeal,
the notice of appeal was due on July 3, 2018. See TEX. R. APP. P. 26.1(b). A motion for extension
of time to file the notice of appeal was due on July 18, 2018. See TEX. R. APP. P. 26.3. However,
appellant did not file a notice of appeal until July 24, 2018, and it did not file a motion for
extension of time to file its notice of appeal until July 25, 2018.
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,
once the fifteen-day period for granting a motion for extension of time under Ruel 26.3 has
passed, a party can no longer invoke the appellate court’s jurisdiction. Id.; see Kalakonda v.
Aspri Inv., LLC, No. 04-15-00340-CV, 2015 WL 4554254, at *1 (Tex. App.—July 29, 2015, no
pet.) (concluding purported notice of appeal was untimely when it was filed after Rule 26.3’s
fifteen-day grace period and appeal had to be dismissed for lack of jurisdiction); Shaheen v.
Luckie’s Auto & Truck Repair, Inc., 2009 WL 2374562, at *1 (Tex. App.—Eastland 2009, no
pet.) (“Because the notice of appeal was not filed during the Rule 26.3 fifteen-day time frame,
we are unable to imply the timely filing of the motion under the provisions of Verburgt.”).
We, therefore, ORDER appellant to show cause in writing by August 24, 2018 why this
appeal should not be dismissed for lack of jurisdiction. We suspend all appellate deadlines
pending our determination of whether we have jurisdiction over this appeal.
_________________________________
Karen Angelini, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 3rd day of August, 2018.
___________________________________
KEITH E. HOTTLE,
Clerk of Court