Opinion
No. 05-17-00469-CV
06-20-2017
DANNY RAY DANIEL, Appellant v. CYNTHIA DENISE DANIEL A/K/A CINDY LEWIS DANIEL, Appellee
On Appeal from the 302nd Judicial District Court Dallas County, Texas
Trial Court Cause No. DF-16-24203
MEMORANDUM OPINION
Before Justices Lang, Myers, and Stoddart
Opinion by Justice Stoddart
Before the Court is appellant's May 4, 2017 motion to extend time to file his notice of appeal. The trial court signed a final judgment on January 27, 2017 and appellant filed a timely motion for new trial on February 23, 2017. Therefore, his notice of appeal was due by April 27, 2017. See TEX. R. APP. P. 26.1(a). Appellant filed a notice of appeal in the trial court on May 2, 2017.
An appellate court may extend the time to file the notice of appeal if, within fifteen days after the due date, the appellant files the notice of appeal and motion complying with Rule 10.5(b). See TEX. R. APP. P. 10.5(b), 26.3. Without a timely notice of appeal, this Court lacks jurisdiction. See TEX. R. APP. P. 25.1(b).
To obtain an extension, an appellant must offer a reasonable explanation for the delay in filing the notice of appeal. See TEX. R. APP. P. 10.5(b)(1)(C). The Texas Supreme Court defines a "reasonable explanation" as "[a]ny plausible statement of circumstances indicating that failure to file within the [specified] period was not deliberate or intentional, but was the result of inadvertence, mistake, or mischance." Hone v. Hanafin, 104 S.W.3d 884, 886 (Tex. 2003) (citing Meshwert v. Meshwert, 549 S.W.2d 383, 384 (Tex. 1977)). Intentionally waiting for the trial court to hear or rule on a motion for new trial is not a reasonable excuse for an untimely notice of appeal. See Zhao v. Lone Star Engine Installation Ctr., No. 05-09-01055-CV, 2009 WL 3177578, at *2 (Tex. App.—Dallas Oct. 6, 2009, pet. denied) (per curiam) (mem.op.) (waiting for ruling on motion for new trial not reasonable explanation); Gibbs v. Allsup Enter., Inc., 153 S.W.3d 603, 604 (Tex. App.—Amarillo 2004, pet. denied) (per curiam) (attorney waiting to review order denying motion for new trial was deliberate delay and not reasonable explanation).
In his motion, appellant asserts as his sole reason for the extension that "the Motion for New Trial hearing was not set until after the 90-day time period allowed to file an appeal pursuant to the Texas Rules of Appellate Procedure." Appellant's explanation is not based on inadvertence, mistake, or mischance. Rather, his explanation shows he was aware of the deadline for filing his notice of appeal, but consciously chose to ignore it. As a result, we conclude appellant has not provided a reasonable explanation for the need for an extension. We deny his motion to extend time to file his notice of appeal and dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a). 170469F.P05
/Craig Stoddart/
CRAIG STODDART
JUSTICE
JUDGMENT
On Appeal from the 302nd Judicial District Court, Dallas County, Texas
Trial Court Cause No. DF-16-24203.
Opinion delivered by Justice Stoddart, Justices Lang and Myers participating.
In accordance with this Court's opinion of this date, the appeal is DISMISSED for want of jurisdiction.
It is ORDERED that appellee CYNTHIA DENISE DANIEL A/K/A CINDY LEWIS DANIEL recover her costs of this appeal, if any, from appellant DANNY RAY DANIEL. Judgment entered this 20th day of May, 2017.