marisela-g-salas-individually-and-as-representative-of-the-estate-of ( 2014 )

Allen Keller Co. I, L.L.C.
d/b/a Allen Keller /s
Fourth Court of Appeals
San Antonio, Texas
October 20, 2014
No. 04-14-00622-CV
Marisela G. SALAS, Individually and as Representative of the Estate of Martin Suarez and as
Next Friend of Keyla Marizel Salas Suares, Minor,
Appellants
v.
ALLEN KELLER CO. I, L.L.C. d/b/a Allen Keller Co.,
Appellee
From the 216th Judicial District Court, Gillespie County, Texas
Trial Court No. 13410
Honorable N. Keith Williams, Judge Presiding
ORDER
In this appeal, appellant appeals a judgment signed June 9, 2014. Accordingly, the notice
of appeal was due July 9, 2014, or a motion for extension of time to file the notice of appeal was
due fifteen days later on July 24, 2014. See TEX. R. APP. P. 26.1, 26.3. The record contains a
notice of appeal file stamped July 11, 2014. The notice of appeal contains a certificate of service
stating the notice of appeal was served on appellee by mail on July 9, 2014; however, it does not
state it was filed by mail with the district clerk on that same date. Appellant did not file a motion
for extension of time to file the notice of appeal.
A notice of appeal may appear to be late if filed by mail pursuant to rule 9.2(b) of the
Texas Rules of Appellate Procedure. See TEX. R. APP. P. 9.2(b); Lofton v. Allstate Ins. Co., 895
S.W.2d 693 (Tex. 1995). Additionally, 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, 615 (Tex. 1997). However, the
appellant must offer a reasonable explanation for failing to file timely the notice of appeal. See
id.; see also TEX. R. APP. P. 26.3, 10.5(b)(1)(C); Garcia v. Kastner Farms, Inc., 774 S.W.2d 668,
670 (Tex. 1989).
We therefore order that appellant may file, on or before October 30, 2014, a response
establishing that the notice of appeal was timely filed by mail or offering a reasonable
explanation for failing to file the notice of appeal timely. If appellant
fails to satisfactorily respond within the time provided, the appeal will be dismissed. See TEX. R.
APP. P. 42.3(c). If a supplemental clerk’s record is required, appellant must ask the district clerk
to prepare one and must notify the clerk of this court that such a request was made. All deadlines
in this matter are suspended until further order of this court.
___________________________________
Marialyn Barnard, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 20th day of October, 2014.
___________________________________
Keith E. Hottle
Clerk of Court