Summary
holding that postponing decision on whether to appeal until after motion for new trial hearing did not constitute reasonable explanation
Summary of this case from Aero at Sp. Z.O.O. v. GartmanOpinion
No. 05-09-01055-CV
Opinion Filed October 6, 2009.
On Appeal from the 134th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 08-10266.
Before Justices WRIGHT, RICHTER, and FILLMORE.
MEMORANDUM OPINION
The Court has before it appellant's September 22, 2009 motion to extend time to file his notice of appeal and appellee's response in opposition to the motion. For the reasons set forth below, we deny the extension motion and dismiss the appeal.
The trial court's judgment was signed on May 20, 2009 and appellant filed a timely motion for new trial. Therefore, his notice of appeal was due by August 18, 2009. See Tex. R. App. P. 26.1(a). The notice of appeal was filed on September 2, 2009, within the fifteen-day period provided by rule 26.3. See Tex. R. App. P. 26.3(a). Therefore, we directed appellant to file a motion to extend time to file his notice of appeal setting forth a reasonable explanation for the need of the extension. See Tex. R. App. P. 10.5(b), 26.3(b); Verburgt v. Dorner, 959 S.W.2d 615 (Tex. 1997). In his extension motion, appellant asserted, "Plaintiff's motion for new trial was timely filed on June 19, 2009. The hear [sic] date of motion for new trial was set on Sept. 2nd, 2009; Therefore whether to appeal only could be determined after the hearing of motion for new trial." Appellee responded that appellant did not provide a reasonable explanation because the motion for new trial had already been overruled by operation of law on August 3, 2009, and appellant did not file his notice of appeal until the 105th day after the trial court's judgment was signed. We agree that appellant has not provided a reasonable explanation for the need of the extension.
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 deliberated or intentional, but was the result of inadvertence, mistake, or mischance." Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 669 (Tex. 1989) (internal citation omitted). "Any conduct short of deliberate or intentional noncompliance qualifies as inadvertence, mistake, or mischance. . . ." Id. at 670.
Texas courts have rejected as unreasonable explanations that show a defendant's conscious or strategic decision to wait to file a notice of appeal, reasoning the explanations did not show inadvertence, mistake, or mischance. See, e.g., Hykonnen v. Baker Hughes Bus. Support Servs., 93 S.W.3d 562, 563-64 (Tex. App.-Houston [14th Dist.] 2002, no pet.) (holding unreasonable appellant's explanation he failed to file notice of appeal until he found 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 unreasonable explanation that when State disclosed, after expiration of time for filing notice of appeal, its intent to indict appellant for other crimes, appellant decided to appeal to preserve eligibility for probation in upcoming trials); Kidd v. Paxton, 1 S.W.3d 309, 310-13 (Tex. App.-Amarillo 1999, no pet.) (op. on reh'g) (holding unreasonable explanations counsel miscalculated due date for filing notice of appeal when he failed to file notice of appeal on miscalculated date and counsel's preoccupation with other cases without detailed explanation of complexities and relevant deadlines of other cases); Weik v. Second Baptist Church of Houston, 988 S.W.2d 437, 439 (Tex. App.-Houston [1st Dist.] 1999, pet. denied) (holding unreasonable appellant's explanation that his lawyer told him if he appealed case while trial court still had authority to reinstate case, trial court would reinstate case and appellant would have difficult time prosecuting claim because of trial court's displeasure with appellant). This Court has likewise rejected as unreasonable explanations that showed an appellant's decision to wait to file a notice of appeal was not due to inadvertence, mistake, or mischance, but was due to a conscious decision to ignore the appellate timetable in favor of the trial court's jurisdictional timetable. See Crossland v. Crossland, No. 05-06-00228-CV, 2006 WL 925032 (Tex. App.-Dallas Apr. 11, 2006, no pet.) (mem. op.) (per curiam).
Because appellant's explanation in this case shows he was aware of the deadline for filing his notice of appeal, but consciously ignored the deadline in favor of waiting for a ruling on his motion for new trial, we conclude appellant has not provided a reasonable explanation for the need of the extension. We deny his motion to extend time to file his notice of appeal.
We dismiss the appeal for want of jurisdiction.