Barry C. Connor v. Lynette Marie Connor

• Court: Court of Appeals of Texas
• Decided: December 22, 2015
• Docket: 01-15-00916-CV
• Status: Published

Opinion

Opinion issued December 22, 2015

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-15-00916-CV ——————————— BARRY C. CONNOR, Appellant V. LYNETTE MARIE CONNOR, Appellee

On Appeal from the 311th District Court Harris County, Texas Trial Court Case No. 2013-68896

MEMORANDUM OPINION

This is an attempted appeal from a divorce decree signed July 14, 2015. A

motion for new trial was filed on August 13, 2015, extending the time to file the

notice of appeal until October 12, 2015. The notice of appeal was not filed until

October 23, 2015. An appellate court may extend the time to file the notice of appeal if, within

15 days after the due date, the appellant files the notice of appeal and a motion for

extension in the appellate court. TEX. R. APP. P. 26.3. Appellant did file a notice of

appeal and motion within the 15–day extension period. However, appellant was

required to offer a reasonable explanation for the delay in filing the notice of appeal.

See TEX. R. APP. P. 10.5(b)(1)(C), (b)(2)(A), 26.3(b); Jones v. City of Houston, 976

S.W.2d 676, 677 (Tex. 1998). The Texas Supreme Court defines a “reasonable

explanation” as “[A]ny 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, 670 (Tex. 1989).

In his motion for extension, appellant offered as his excuse that he was

“hoping that the trial judge would grant our Motion for New Trial and our Motion

to Reinstate making this appeal unripe.” No other excuse is offered. Appellant

indicates he did not timely file his notice of appeal because he was waiting for the

trial court to rule on his motion for new trial. He does not indicate he missed the

deadline inadvertently or because of “mistake or mischance.”

Intentionally waiting for the trial court to hear or rule on a motion for new

trial is not a reasonable excuse for untimely filing the notice of appeal. See Gibbs v.

Allsup Enter., Inc., 153 S.W.3d 603, 604 (Tex. App.—Amarillo 2004, pet. denied)

2 (appeal dismissed where appellant intentionally delayed to review trial court order

overruling motion for new trial before deciding whether to appeal and appellate court

found this intentional delay was not reasonable explanation for needing extension of

time to file notice of appeal); Pasha v. YP Advertising, L.P., No. 01-14-00456-CV,

2014 WL 4116456, at *1–2 (Tex. App.—Houston [1st Dist.] Aug. 21, 2014, no pet.)

(appeal dismissed because appellant’s explanation that they believed there was a

chance trial court would grant their motion for new trial held to be conscious

ignorance of deadline and thus, their failure to file notice of appeal timely was

unreasonable); Allen v. Hinze, No. 02-13-00466-CV, 2014 WL 787867, at *2 (Tex.

App.—Fort Worth Feb. 27, 2014, no pet.) (appeal dismissed because appellant’s

explanation that she was waiting on trial court to hold hearing and rule on motion

for new trial suggests appellant was aware of deadline to file notice of appeal and

consciously chose to ignore it); Zhao v. Lone Star Engine Installation Center, Inc.,

No. 05-09-01055-CV, 2009 WL 3177578, at *2 (Tex. App.—Dallas Oct. 6, 2009,

pet. denied) (motion to extend denied and appeal dismissed where appellant’s

explanation for delay showed appellant was aware of deadline but consciously

ignored it in favor of waiting for ruling on motion for new trial).

Because appellant has not presented a reasonable explanation for untimely

filing his notice of appeal, we deny the motion for extension of time to file the notice

of appeal. Without a timely filed notice of appeal, we have no jurisdiction over the

3 appeal. TEX. R. APP. P. 25.1(b). Accordingly, we dismiss the appeal for want of

jurisdiction. Any pending motions are dismissed as moot.

PER CURIAM

Panel consists of Justices Higley, Huddle, and Lloyd.