JAC Hospitality, LLC, John Ly Catherine Ly and Jason Ly v. Vintage Dunhill ( 2019 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER AND NOTICE OF INTENT TO DISMISS FOR WANT OF JURISDICTION
Appellate case name: JAC Hospitality, LLC, John Ly, Catherine Ly, and Jason Ly
v. Vintage Dunhill LLC
Appellate case number: 01-19-00393-CV
Trial court case number: 2016-77844
Trial court: 295th District Court of Harris County
On May 20, 2019, appellants, JAC Hospitality, LLC, John Ly, Catherine Ly, and
Jason Ly, filed a notice of appeal from the trial court’s February 4, 2019 final judgment,
after timely filing a motion for new trial. See TEX. R. APP. P. 26.1(a)(1). On June 20,
2019, appellee, Vintage Dunhill LLC, filed a motion to dismiss appeal for lack of
jurisdiction contending that the notice of appeal was untimely filed.
After a review of the motion to dismiss and the district clerk’s letter of assignment,
filed in this Court on May 23, 2019, appellants are notified that this Court may dismiss
this appeal for want of jurisdiction as untimely. See TEX. R. APP. P. 42.3(a), (c).
Generally, a notice of appeal is due within thirty days after the final judgment is signed.
See TEX. R. APP. P. 26.1. The deadline to file a notice of appeal is extended to ninety days
after the date the judgment is signed if, within thirty days after the judgment is signed, any
party timely files a post-judgment motion. See TEX. R. APP. P. 26.1(a); TEX. R. CIV. P.
296, 329b(a), (g). 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 extension period under Rule 26.3. See TEX. R. APP. P. 26.1(b), 26.3;
Verburgt v. Dorner, 959 S.W.2d 615, 617–18 (Tex. 1997). Even with an implied
extension, the appellant must, however, offer a reasonable explanation for failing to timely
file the notice. See TEX. R. APP. P. 10.5(b)(1)(C), (b)(2)(A), 26.3(b); Hone v. Hanafin, 104
S.W.3d 884, 886-87 (Tex. 2003); Jones v. City of Houston, 976 S.W.2d 676, 677 (Tex.
1998).
Here, because appellants timely filed a motion for new trial, that extended their
deadline to file a notice of appeal 90 days after the trial court’s February 4, 2019 final
judgment, which was Sunday, May 5, 2019, or by May 6, 2019. See TEX. R. APP. P. 4.1(a),
26.1(a)(1). Thus, appellants’ notice of appeal was untimely filed on May 20, 2019, more
than 90 days after the trial court’s final judgment. See TEX. R. APP. P. 26.1(a)(1). Although
a motion for extension of time to file the notice of appeal was necessarily implied because
appellant’s May 20, 2019 notice of appeal was filed within the 15-day extension period
ending on May 20, 2019, appellants must still offer a reasonable explanation for failing to
timely file the notice of appeal. See TEX. R. APP. P. 10.5(b)(1)(C), 26.3(b); Hone, 104
S.W.3d at 886-87; Verburgt, 959 S.W.2d at 617–18. A “reasonable explanation” is “any
plausible statement of circumstances indicating that failure to file within the [specified]
period was not deliberate or intentional, but was the result of inadvertence, mistake or
mischance.” Hone, 104 S.W.3d at 886 (internal quotation marks and citation omitted).
Accordingly, appellants are warned that unless you respond in writing to appellee’s
motion and this Order, within 10 days of the date of this Order, by filing a motion for
extension of time to file the notice of appeal including a reasonable explanation for
untimely filing the notice of appeal, this Court may grant the appellee’s motion and
dismiss your appeal for want of jurisdiction without further notice. See TEX. R. APP.
P. 10.3(a), 42.3(a), (c).
It is so ORDERED.
Judge’s signature: _____/s/ Evelyn V. Keyes___
x Acting for the Court
Date: ___July 2, 2019____
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