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Don Prochaska v. Matthew Barnes, Montcalm Co., LLC, and Schain Leifer Guralnick
01-15-01044-CV
Tex. App.
Dec 29, 2015
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Case Information

*1 C OURT OF A PPEALS FOR THE F IRST D ISTRICT OF T EXAS AT H OUSTON O RDER

Appellate case name: Don Prochaska v. Matthew Barnes, Montcalm Co., LLC and

Schain, Leifer, Guralnick

Appellate case number: 01-15-01044-CV

Trial court case number: 2013-35800

Trial court: 334th District Court of Harris County

Appellant, Don Prochaska, appeals from two interlocutory orders, signed on November 3, 2015. His notice of appeal was due by November 23, 2015 or, if he timely filed a motion to extend time to file the notice of appeal, by December 8, 2015. See T EX . R. A PP . P. 26.1(b), 26.3; see id. 28.1(a); T EX . C IV . P RAC . & R EM . C ODE A NN . § 51.014(7) (West Supp. 2015). Prochaska filed his notice of appeal on December 7, 2015.

To extend the deadline to file his notice of appeal, Prochaska was required to file a motion for extension by December 8, 2015. See T EX . R. A PP . P. 26.3. He filed his “Motion to Extend Time to File Notice of Appeal” on December 9, 2015. Although Prochaska did not file the motion for extension within the fifteen-day extension period, we imply a motion for extension of time when an appellant, acting in good faith, files a notice of appeal after the time allowed by rule 26.1 but within the fifteen-day extension period provided by rule 26.3. See T EX . R. A PP . P. 26.1, 26.3; Verburgt v. Dorner , 959 S.W.2d 615, 617 (Tex. 1997). An appellant must, however, offer a reasonable explanation for failing to timely file the notice of appeal. See T EX . R. A PP . P. 10.5(b), 26.3; Jones v. City of Houston , 976 S.W.2d 676, 677 (Tex. 1998). Prochaska’s motion provides a reasonable explanation for the failure to timely file the notice of appeal. See Jones , 976 S.W.2d at 677; Porter v. Serna , No. 04-13-00177-CV, 2013 WL 6869902, at *1 n.1 (Tex. App.—San Antonio Dec. 31, 2013, no pet.) (mem. op.) (citing Verburgt , 959 S.W.2d at 617). Accordingly, we imply a motion for extension, grant the implied motion, and extend the time file the notice of appeal to December 7, 2015. We dismiss as moot appellant’s motion for extension of time to file the notice of appeal.

It is so ORDERED. Judge’s signature: /s/ Russell Lloyd  Acting individually  Acting for the Court Date: December 29, 2015

Case Details

Case Name: Don Prochaska v. Matthew Barnes, Montcalm Co., LLC, and Schain Leifer Guralnick
Court Name: Court of Appeals of Texas
Date Published: Dec 29, 2015
Docket Number: 01-15-01044-CV
Court Abbreviation: Tex. App.
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