Agbolade Odutayo and Bonita Odutayo v. Steve Wu Individually and as Trustee for the Wu Family Trust
Opinion
ACCEPTED
01-15-00641-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
8/4/2015 5:28:11 PM
CHRISTOPHER PRINE
CLERK
NO. 01-15-00641-CV
FILED IN
1st COURT OF APPEALS
IN THE COURT OF APPEALS HOUSTON, TEXAS FOR THE FIRST DISTRICT OF TEXAS 8/4/2015 5:28:11 PM HOUSTON, TEXAS CHRISTOPHER A. PRINE Clerk
AGBOLADE ODUTAYO and BONITA ODUTAYO, Appellants
v.
STEVE WU, Individually and as Special Trustee for Wu Family Trust, Appellee
Appeal
From the133rd Judicial District Court of Harris County, Texas Cause No. 2013-30215
The Honorable Jaclanel McFarland, Presiding
APPELLEE’S MOTION TO DISMISS AND RESPONSE TO MOTION FOR EXTENSION OF TIME TO FILE NOTICE OF APPEAL
Brad E. Porter
Tex. Bar No. 24048741
brad@porterpowers.com
J. Robert MacNaughton
Tex. Bar No. 00789944
robert@porterpowers.com
PORTER & POWERS, PLLC
5900 Memorial Drive, Suite 305 Houston, Texas 77007
713-621-0700 Telephone
713-621-0709 Facsimile
ATTORNEYS FOR APPELLEE
STEVE WU, Individually and as Special Trustee for Wu Family Trust
APPELLEE’S MOTION TO DISMISS AND RESPONSE TO APPELLANTS’
MOTION FOR EXTENSION OF TIME TO FILE NOTICE OF APPEAL
TO THE HONORABLE JUSTICES OF THE FIRST COURT OF APPEALS:
Appellee, Steve Wu, Individually and as Special Trustee for Wu Family Trust (“Appellee”), moves to dismiss this appeal under Rule 10 of the Texas Rules of Appellate Procedure for lack of jurisdiction, because the Appellants have failed to timely file a notice of appeal to invoke the Court’s jurisdiction, and have also failed to file an sufficiently adequate motion for extension of time to file notice of appeal within the time period proscribed.
On July 24, 2015, Appellants, Agbolade Odutayo and Bonita Odutayo (“Appellants”), filed and served “Appellants Motion for Extension of Time to File
Notice of Appeal” in this proceeding (“Motion to Extend”) within the grace period
1
provided by Rule 26.3. The Motion to Extend is not verified or supported by any
evidence. Also on July 24, 2015, Appellants filed and served a Notice of Appeal in the court below (“Notice of Appeal”).
The Notice of Appeal gives notice that the Appellants are appealing the final summary judgment order signed and entered April 13, 2015. Appellants, as
1 The Motion to Extend does not meet with the requirements of Rule 10.1(a)(5) as no Certificate of Conference was provided, as no such conference ever occurred, and on information and belief no attempt to confer was ever made. In addition, on information and belief, the Motion to Extend was not electronically filed, as is required when the Appellants are represented by counsel.
defendants below, filed a timely Motion for New Trial on May 12, 2015 (“Motion for New Trial”). The Appellants did not seek to have a timely hearing on the Motion for New Trial and it was overruled by operation of law as of June 27, 2015. 2 Because the Appellants had filed the Motion for New Trial, the deadline for filing the Notice of Appeal was July 13, 2015, the Monday following the deadline. The Notice of Appeal was not timely filed, and the Appellants must comply with the requirements for obtaining an extension of time to file it.
Pursuant to Texas Rules of Appellant Procedure, Rule 26.3(b) in addition to filing a Notice of Appeal within the fifteen days after the deadline for filing the notice of appeal, the Appellants were required to file a motion complying with Rule 10.5.(b), in order to obtain an extension of time to file the Notice of Appeal. See: TEX. R. APP. PROC. 26.3(B). Pursuant to Texas Rules of Appellant Procedure, Rule 10.5(b)(2), the Appellants’ Motion to Extend was required to contain, as the rule states: “the facts relied on to reasonably explain the need for an extension,” pursuant to Rule 10.5(b)(1)(C). See: TEX. R. APP. PROC. 10.5(B)(2) AND 10.5(B)(1)(C). The only statement contained in the Motion to Extend as to why an extension was needed is the statement making up the third paragraph:
“This extension of time is necessary because the 90-day deadline to file has passed and the appellant’s [sic] Motion for a New Trial was overruled by operation of law.”
2 Appellants first set the Motion for New Trial for hearing and then re-set it hearing for July 20, 2015, wherein the trial court advised the parties that the Motion for New Trial had been overruled by operation of law and the court would leave it that way.
The Motion to Extend provides no other basis, or facts, for seeking an extension of time to file the Notice of Appeal.
In the context of the old Rule 41 of the Texas Rules of Appellate Procedure, to obtain and extension of time to file a cost bond the Texas Supreme Court has defined as that a “reasonable explanation” is:
“Any plausible statement of circumstances indicating that failure to file . . . was not deliberate or intentional, but was the result of inadvertence, mistake, or mischance, [would] be accepted as a reasonable explanation, even though counsel or his secretary may appear to have been lacking in that degree of diligence which careful practitioners normally exercise.”
See: Garcia v Kastner Farms,, Inc., 774 S.W.2d 668, 670 (Tex. 1989) (citing: United States Fire Ins. Co. v. Stricklin, 547 S.W.2d 338 (Tex. Civ. App. - Dallas 1977, no writ) and Heritage Life Ins. Co. v. Heritage Group Holding Corp, 751 S.W.2d 229, 231-32 (Tex. App. – Dallas 1988, writ den’d.). This standard is also applied to extensions of time for notices of appeals. See: Hone v Hanaflin, 104 S.W.3d 884 (Tex. 2003) (citing: Meshwert v Meshwert, 549 S.W.2d 383, 384 (Tex. 1977).
Texas courts have granted motions for extension of time to file a notice of appeal where explanation provided was a misunderstanding of, or applicable appellate rules, such as an erroneous calculation of a deadline; Dimotsis v State Farm Lloyds,, 966 S.W.2d 657 (Tex. App. – San Antonio 1998) (by verified statement); an improperly calendared deadline; Gregorian v. Ewell, 106 S.W.3d 257, 258 (Tex. App. – Fort Worth 2003, no pet.)(held to the unique circumstances of that case); and a
mistaken designation of the wrong court of appeals; Birmingham Fire Ins. Co. of Pennsylvania v American National Fire Ins. Co., 928 S.W.2d 226, 228 (Tex. App. – Texarkana 1996, no writ); Garcia v Kastner Farms Inc., 774 S.W.2d 668, 670 (Tex. 1989).
Texas courts have found an explanation unreasonable when the explanation reveals a defendant’s conscious or strategic decision to wait to file a notice of appeal because the explanation did not show inadvertence, mistake, or mischance. Hykonnen v. Baker Hughes Business Support Services, 93 S.W.3d 562, 563-64 (Tex. App. – Houston [14th Dist.] 2002, no pet.). In Hykonnen, the appellant contended in essence that they did not timely file the appeal because they did not have the funds to hire an attorney.
In this case, the Appellants have not contended that they did not know of the deadline, or that there was a mistake, they just contend that the deadline has happened. The Court in Weik v Second Baptist Church of Houston, held that waiting until trial court’s plenary power expired in case trial court reinstated case was not sufficient grounds for a late notice of appeal. Weik v Second Baptist Church of Houston, 988 S.W.2d 437, 439 (Tex. App. – Houston [1st Dist.] 1999, pet.. den’d.). If it is appropriate for any facts to be reasonably inferred from the statements Appellants did provide to the Court, they would be similar to the Weik case. Appellants waited to see if the trail court would grant the Motion for New Trial at a hearing set after the 90 day deadline had run. Regardless whether it is considered intentional act or a failure
to give any explanation at all as to why the Notice of Appeal should be permitted to be filed late, the Appellants Motion to Extend should fail on either ground.
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Agbolade Odutayo and Bonita Odutayo v. Steve Wu Individually and as Trustee for the Wu Family Trust (Agbolade Odutayo and Bonita Odutayo v. Steve Wu Individually and as Trustee for the Wu Family Trust) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.