antonio-salinas-jr-and-san-juana-salinas-individually-and-as-personal ( 2008 )

NUMBERS 13-08-00109-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
______________________________________________________________
ANTONIO SALINAS, JR. AND
SAN JUANA SALINAS, INDIVIDUALLY
AND AS PERSONAL REPRESENTATIVES
OF THE ESTATE OF TIFFANY MARIE SALINAS,
DECEASED, Appellants,
v.
JOHN W. KRISTENSEN, M.D., Appellee.
_____________________________________________________________
On Appeal from the 197th District Court
of Cameron County, Texas.
______________________________________________________________
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Yañez and Rodriguez
Memorandum Opinion Per Curiam
Appellants, Antonio Salinas, Jr, and San Juana Salinas, Individually and as personal
representatives of the Estate of Tiffany Marie Salinas, Deceased, attempted to perfect an
appeal from an order entered by the 197th District Court of Cameron County, Texas, in
cause number 2007-07-3647-C. Judgment in this cause was signed on October 23, 2007.
A motion for new trial was filed on November 20, 2007, an amended motion for new trial
was filed on January 22, 2008, and notice of appeal was filed on February 11, 2008.
The notice of appeal states the “trial court subsequently modified its October 23,
2007, judgment and reentered judgment in this cause of action on November 20, 2007,”
however, the clerk’s record does not contain a final judgment entered on November 20,
2007, in cause number 2007-07-3647-C. The supplemental clerk’s record contains a final
judgment entered on November 30, 2007, but it references a different cause number.
Pursuant to Texas Rule of Appellate Procedure 26.1, appellants’ notice of appeal
was due on January 21, 2008, but was not filed until February 11, 1008. 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.–Amarillo 2004, no pet.); In re B.G., 104 S.W.3d 565, 567 (Tex. App.–Waco
2002, no pet.).
On May 15, 2008, the Clerk of this Court notified appellants of this defect so that
steps could be taken to correct the defect, if it could be done. Appellants were advised that,
if the defect was not corrected within ten days from the date of receipt of this Court’s letter,
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the appeal would be dismissed. To date, no response has been received from appellants
providing a reasonable explanation for the late filing of the notice of appeal.
The Court, having examined and fully considered the documents on file, appellants’
failure to timely perfect his appeal, and appellants’ failure to respond to this Court’s notice,
is of the opinion that the appeal should be dismissed for want of jurisdiction. Accordingly,
the appeal is hereby DISMISSED FOR WANT OF JURISDICTION. See TEX . R. APP. P.
42.3(a)(c).
PER CURIAM
Memorandum Opinion delivered and
filed this 25th day of August, 2008.
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