Prototype MacHine Company v. Toledo P. Bouleware ( 2019 )

Fourth Court of Appeals
San Antonio, Texas
January 7, 2019
No. 04-18-00952-CV
PROTOTYPE MACHINE COMPANY,
Appellant
v.
TOLEDO P. BOULEWARE ET AL.,
Appellee
From the 63rd Judicial District Court, Kinney County, Texas
Trial Court No. 3469
Honorable Enrique Fernandez, Judge Presiding
ORDER
The trial court signed a final judgment on October 26, 2018. Because appellant did not
file a motion for new trial, motion to modify the judgment, motion for reinstatement, or request
for findings of fact and conclusions of law, the notice of appeal was due to be filed on November
25, 2018. See TEX. R. APP. P. 26.1(a). A motion for extension of time to file the notice of appeal
was due on December 10, 2018. See TEX. R. APP. P. 26.3. Although appellant filed a notice of
appeal in the trial court within the fifteen-day grace period allowed by Rule 26.3, appellant did
not file a motion for extension of time in this court until December 12, 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, the
appellant must offer a reasonable explanation for failing to file the notice of appeal in a timely
manner. See id.; TEX. R. APP. P. 26.3, 10.5(b)(1)(C).
Because appellant’s motion for extension of time to file a notice of appeal offers a
reasonable explanation for failing to file the notice of appeal in a timely manner, the motion is
GRANTED. See TEX. R. APP. P. 10.5(b)(1)(C).
_________________________________
Sandee Bryan Marion, Chief Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 7th day of January, 2019.
___________________________________
KEITH E. HOTTLE,
Clerk of Court