Mark Allen Earl v. James Dale Kinnaird ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00078-CV
___________________________
MARK ALLEN EARL, Appellant
V.
JAMES DALE KINNAIRD, Appellee
On Appeal from the 233rd District Court
Tarrant County, Texas
Trial Court No. 233-650004-18
Before Gabriel, Kerr, and Pittman, JJ.
Memorandum Opinion by Justice Gabriel
MEMORANDUM OPINION
Appellant Mark Allen Earl attempts to appeal from a protective order the trial
court rendered against him, which it signed on November 26, 2018. Earl filed a
motion for new trial, and thus his deadline to file a notice of appeal was February 25,
2019. See Tex. R. App. P. 26.1(a)(1). But Earl did not file his notice of appeal until
March 1, 2019.
On March 8, 2019, we notified Earl of our concern that we lacked jurisdiction
over his appeal because his notice of appeal was untimely filed. We provided Earl or
any other party desiring to continue the appeal ten days to respond and provide a
reasonable explanation for the late-filed notice of appeal, and we cautioned that the
failure to provide such a response could result in the dismissal of this appeal for want
of jurisdiction. See Tex. R. App. P. 10.5(b), 26.3(b), 42.3(a). More than ten days have
passed, and neither Earl nor any other party has filed a response to our March 8, 2019
letter.
The time for filing a notice of appeal is jurisdictional, and absent a timely-filed
notice of appeal or motion for extension of time to file the notice of appeal, we must
dismiss the appeal. See Tex. R. App. P. 25.1(b), 26.3; Jones v. City of Houston,
976 S.W.2d 676, 677 (Tex. 1998); Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997).
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 period in which the appellant would be entitled to move to extend the
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filing deadline under rule 26.3. See Tex. R. App. P. 26.1, 26.3; Jones, 976 S.W.2d at 677;
Verburgt, 959 S.W.2d at 617. But even when a motion for extension is implied, the
appellant still must reasonably explain the need for an extension. See Jones, 976 S.W.2d
at 677; Verburgt, 959 S.W.2d at 617; Woodard v. Higgins, 140 S.W.3d 462, 462 (Tex.
App.—Amarillo 2004, no pet.).
Earl’s notice of appeal was untimely, but it was filed within the fifteen-day
period in which a motion for extension of time is implied. Even so, Earl still had to
reasonably explain his need for an extension. See Tex. R. App. P. 42.3(a); Jones,
976 S.W.2d at 677; Verburgt, 959 S.W.2d at 617; Chilkewitz v. Winter, 25 S.W.3d 382,
383 (Tex. App.—Fort Worth 2000, no pet.). Because he did not, we dismiss this
appeal for want of jurisdiction. Tex. R. App. P. 42.3(a), 43.2(f).
/s/ Lee Gabriel
Lee Gabriel
Justice
Delivered: April 25, 2019
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