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denying motion to extend time because appellant's explanation that his counsel had been out of the country "closely resemble[d] the types of explanations . . . that reflect appellant's awareness of the deadline for timely notice of appeal but a decision to ignore it."
Summary of this case from Golden v. Energy & Exploration Partners, LLCOpinion
No. 05-05-01484-CV
Opinion Filed January 4, 2006.
On Appeal from the 298th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 04-01617-M.
Dismiss.
Before Chief Justice THOMAS and Justices LANG and LANG-MIERS.
MEMORANDUM OPINION
The Court has before it appellant The Hidden Door, Inc.'s October 28, 2005 motion to extend time to file notice of appeal and appellee Bill Bush's November 1, 2005 motion to dismiss for want of jurisdiction, asserting that appellant has failed to timely or properly invoke this Court's jurisdiction. The record shows that appellant filed its notice of appeal on October 25, 2005, 105 days after the July 12, 2005 judgment. On November 16, 2005, this Court sent appellant a letter questioning its jurisdiction over the appeal. We directed appellant to file within ten days of the date of the letter a copy of any postjudgment motion that would extend the appellate timetable. On November 28, 2005, appellant filed an amended notice of appeal asserting that it had filed a motion for new trial on August 10, 2005. Appellant did not include a copy of the motion. On December 13, 2005, the clerk filed the clerk's record, including a copy of the August 10, 2005 motion for new trial.
Because appellant filed its notice of appeal beyond the ninety-day time limit imposed by Texas Rule of Appellate Procedure 26.1(a)(1), but within the fifteen-day period in which it could have moved to extend the filing deadline under Rule 26.3, this Court may consider appellant's notice of appeal as an implied motion for extension of time to file a notice of appeal. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). But even if we consider the motion for extension of time timely, we must consider whether appellant's explanation for filing its notice of appeal beyond the ninety-day limit qualifies as a reasonable explanation under Texas Rule of Appellate Procedure 10.5(b)(1)(C).
The Texas Supreme Court has defined "reasonable explanation" to mean "`any plausible statement of circumstance indicating that failure to file within the [required] period was not deliberate or intentional, but was the result of inadvertence, mistake, or mischance.'" Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 669 (Tex. 1989) (citation omitted); see Hagaman v. Morgan, 886 S.W.2d 398, 403 (Tex.App.-Dallas 1994, writ denied). The Supreme Court emphasized that "[a]ny conduct short of deliberate or intentional noncompliance qualifies as inadvertence, mistake or mischance." Garcia, 774 S.W.2d. at 670.
Appellant's motion provides the following explanation: "Counsel for defendant has been out of the country for an extended period of time." The motion does not assert that appellant or its counsel formed an intent to appeal the jury's verdict before expiration of the appropriate deadline for filing but somehow did not file a timely notice of appeal. Nor does it detail how counsel's absence from the country prohibited him from filing a timely notice of appeal. Counsel's explanation does not suggest inadvertence, mistake, or mischance and falls short of the types of explanations that courts of appeal have characterized as inadvertence, mistake, or mischance. See Garcia, 774 S.W.2d at 670 (holding as reasonable, explanation that appellant filed untimely notice of appeal because he misunderstood the law); Ace Ins. Co. v. Zurich Am. Ins. Co., 59 S.W.3d 424, 426 (Tex.App.-Houston [1st Dist.] 2001, pet. denied) (holding as reasonable, explanation that appellant filed untimely notice of appeal because attached order indicated appellant acquired notice of appealable order belatedly); Dimotsis v. Lloyds, 966 S.W.2d 657, 658 (Tex.App.-San Antonio 1998, no pet.) (per curiam) (holding as reasonable, explanation that appellant filed untimely notice of appeal because he misunderstood the law). And it closely resembles the types of explanations that other courts of appeal have held unreasonable and noncompliant, namely explanations that reflect appellant's awareness of the deadline for timely notice of appeal but a decision to ignore it. See Hykonnen v. Baker Hughes Bus. Support Servs., 93 S.W.3d 562, 563-64 (Tex. App-Hous. [14th Dist.] 2002, no pet.) (holding as unreasonable, appellant's explanation that he failed to file notice of appeal until he found an attorney to represent him on appeal at little or no cost); Rodman v. State, 47 S.W.3d 545, 548-49 (Tex.App.-Amarillo 2000, no pet.) (holding as unreasonable, explanation that because the State disclosed its intent to indict appellant for other crimes after expiration of the time for giving notice of appeal, appellant decided to appeal and preserve his eligibility for probation in upcoming trials); Kidd v. Paxton, 1 S.W.3d 309, 310-313 (Tex.App.-Amarillo 1999, no pet.) (holding as unreasonable, explanations that (1) counsel miscalculated the due date for filing notice of appeal when he still failed to file notice of appeal on the miscalculated date and (2) counsel's preoccupation with other cases without a detailed explanation of the complexities and relevant deadlines of the other cases); Weik v. Second Baptist Church of Houston, 988 S.W.2d 437, 439 (Tex.App.-Hous. [1st Dist.] 1999, pet. denied) (holding as unreasonable, appellant's explanation that, on his attorney's advice, he waited until the trial court's plenary power expired before filing his notice of appeal).
Accordingly, we DENY appellant The Hidden Door, Inc.'s October 28, 2005 motion to extend time to file notice of appeal. We GRANT appellee Bill Bush's November 1, 2005 motion to dismiss for want of jurisdiction and DISMISS this appeal for want of jurisdiction.