NUMBER 13-14-00514-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
BELINDA LOPEZ, APPELLANT,
v.
ERASMO LOPEZ AND SANTOS MALDONADO JR., APPELLEES.
On appeal from the 275th District Court of Hidalgo County, Texas.
ORDER OF ABATEMENT Before Justices Rodriguez, Benavides, and Perkes Order Per Curiam
Appellant, Belinda Lopez, attempts to appeal from a “Final Decree of Divorce.”
Appellant has filed a motion for extension of time to file the notice of appeal. Appellee,
Erasmo Lopez, has filed an opposition to the motion for extension contending that
appellant has failed to “state adequate justification for failure to act, but rather has shown a pattern and history of the lack of due diligence in seeking relief.” Appellee, Santos
Maldonado Jr., has also filed an opposition in response to the motion for extension of time
and has further requested that we dismiss the appeal on grounds that the divorce decree
is interlocutory. We first address the timeliness of the notice of appeal.
Texas Rule of Appellate Procedure 26.1 provides that an appeal is perfected when
the notice of appeal is filed within thirty days after the judgment is signed, unless a motion
for new trial or other specified post-judgment motion is timely filed. TEX. R. APP. P.
26.1(a)(1). If a motion for new trial or other specified post-judgment motion is timely filed,
the notice of appeal is due within ninety days after the judgment is signed. See id. R.
26.1(a)(1)–(4). A motion for extension of time is necessarily implied when an appellant,
acting in good faith, files a notice of appeal beyond the time allowed by rule 26.1, but
within the fifteen-day grace period provided by Rule 26.3 for filing a motion for extension
of time. See Verburgt v. Dorner, 959 S.W.2d 615, 617–18, 619 (1997) (construing the
predecessor to Rule 26). However, the appellant must provide a reasonable explanation
for the late filing. Id.; Woodard v. Higgins, 140 S.W.3d 462, 462 (Tex. App.—Amarillo
2004, no pet.); In re B.G., 104 S.W.3d 565, 567 (Tex. App.—Waco 2002, no pet.).
Absent a timely filed notice of appeal from a final judgment or recognized interlocutory
order, we do not have jurisdiction over the appeal. See Lehmann v. Har-Con Corp., 39
S.W.3d 191, 195 (Tex. 2001); see TEX. R. APP. P. 2, 25.1(b), 26.3; Verburgt, 959 S.W.2d
at 617. If the notice is untimely, then we can take no action other than to dismiss the
appeal. See TEX. R. APP. P. 2; Charette v. Fitzgerald, 213 S.W.3d 505, 509 (Tex. App.—
Houston [14th Dist.] 2006, no pet.).
2 In this case, the judgment of divorce was rendered on June 5, 2014, and appellant
filed a motion for new trial on July 3, 2014, thus the notice of appeal was due on
September 3, 2014. TEX. R. APP. P. 26.1(a)(1). The notice of appeal was not filed until
September 11, 2014, but appellant timely filed a motion or extension of time on
September 12, 2014. See id. R. 26.3.
Appellee Maldonado contends that appellant failed to offer a reasonable
explanation for failing to timely file the notice of appeal because she consciously waited
to file the notice of appeal while she determined whether to appeal. In her motion for
extension of time, appellant stated that she sought additional time to file the notice of
appeal because she “wanted to research and confer with other attorneys before filing a
notice of appeal,” because she “has had numerous prior obligations to attend to in other
cases,” the office for lead counsel “was closed for the Labor Day holiday,” and the “[f]ailure
to file before the deadline was not deliberate or intentional.”
As previously stated, we may extend the time to file a notice of appeal if the
appellant’s motion is timely and reasonably explains the need for an extension of time to
file the notice of appeal. TEX. R. APP. P. 10.5(b)(1)(C); id. R. 26.3. “[A] reasonable
explanation is ‘any 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) (quoting Meshwert v. Meshwert, 549 S.W.2d 383, 384 (Tex. 1977)); see Garcia v.
Kastner Farms, Inc., 114 S.W.2d 668, 669 (Tex. 1989). Because of the liberal standard
of review in these cases, “[a]ny conduct short of deliberate or intentional noncompliance
3 qualifies as inadvertence, mistake or mischance.” Id. at 887. An explanation that
shows a conscious or strategic decision to wait to file the notice of appeal is not
reasonable. 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.) (waiting until representation
secured); Weik v. Second Baptist Church of Houston, 988 S.W.2d 437, 439 (Tex. App.—
Houston [1st Dist.] 1999, pet. denied) (waiting until trial court's plenary power expired in
event trial court reinstated case); see also Allen v. Hinze, No. 02-13-00466-CV, 2014 WL
787867, at *2 (Tex. App.—Fort Worth Feb. 27, 2014, no pet.) (mem. op.) (waiting to file
the notice of appeal because waiting to hold a hearing and rule on motion for new trial
was not inadvertent, mistake, or mischance); Morris v. Frost Nat'l Bank, No. 02–11–
00058–CV, 2011 WL 1532391, at *1 (Tex. App.—Fort Worth Apr.21, 2011, no pet.) (mem.
op.); Zee TV USA, Inc. v. Regency Ctrs., L.P., No. 05–10–01297–CV, 2011 WL 47185,
at *1 (Tex. App.—Dallas Jan.7, 2011, no pet.) (mem. op.); Stephens v. Stephens, No. 2-
10-197-CV, 2010 WL 3433108, at *2 (Tex. App.—Fort Worth Aug. 31, 2010, no pet.)
(mem .op.); Crossland v. Crossland, No. 05–06–00228–CV, 2006 WL 925032, at *2 (Tex.
App.—Dallas Apr.11, 2006, no pet.) (mem .op.).
Applying a liberal standard of review, we conclude that counsel’s explanation does
not show deliberate or intentional noncompliance with the relevant deadline to file the
notice of appeal. See Hone, 104 S.W.3d at 886. Thus, appellant timely filed a motion
for extension of time to file the notice of appeal which provides a reasonable explanation
for the delay. Accordingly, we GRANT appellant’s motion for extension of time to file the
notice of appeal.
4 Whether or not the appeal is timely, however, we must still ascertain whether or
not we otherwise possess appellate jurisdiction over this appeal. Accordingly, we next
address appellee Maldonado’s contention that we lack jurisdiction over this appeal on
grounds that the judgment subject to appeal is interlocutory. Specifically, Maldonado
contends that his claims against appellant, brought by intervention into the divorce
proceeding, and appellant’s counterclaims against him are currently being litigated in the
same trial court cause number in which the “final” judgment of divorce was rendered.
Our review of the docket sheet provided by Maldonado clearly shows that the underlying
trial proceedings are still active. See N-S-W Corp. v.
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NUMBER 13-14-00514-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
BELINDA LOPEZ, APPELLANT,
v.
ERASMO LOPEZ AND SANTOS MALDONADO JR., APPELLEES.
On appeal from the 275th District Court of Hidalgo County, Texas.
ORDER OF ABATEMENT Before Justices Rodriguez, Benavides, and Perkes Order Per Curiam
Appellant, Belinda Lopez, attempts to appeal from a “Final Decree of Divorce.”
Appellant has filed a motion for extension of time to file the notice of appeal. Appellee,
Erasmo Lopez, has filed an opposition to the motion for extension contending that
appellant has failed to “state adequate justification for failure to act, but rather has shown a pattern and history of the lack of due diligence in seeking relief.” Appellee, Santos
Maldonado Jr., has also filed an opposition in response to the motion for extension of time
and has further requested that we dismiss the appeal on grounds that the divorce decree
is interlocutory. We first address the timeliness of the notice of appeal.
Texas Rule of Appellate Procedure 26.1 provides that an appeal is perfected when
the notice of appeal is filed within thirty days after the judgment is signed, unless a motion
for new trial or other specified post-judgment motion is timely filed. TEX. R. APP. P.
26.1(a)(1). If a motion for new trial or other specified post-judgment motion is timely filed,
the notice of appeal is due within ninety days after the judgment is signed. See id. R.
26.1(a)(1)–(4). A motion for extension of time is necessarily implied when an appellant,
acting in good faith, files a notice of appeal beyond the time allowed by rule 26.1, but
within the fifteen-day grace period provided by Rule 26.3 for filing a motion for extension
of time. See Verburgt v. Dorner, 959 S.W.2d 615, 617–18, 619 (1997) (construing the
predecessor to Rule 26). However, the appellant must provide a reasonable explanation
for the late filing. Id.; Woodard v. Higgins, 140 S.W.3d 462, 462 (Tex. App.—Amarillo
2004, no pet.); In re B.G., 104 S.W.3d 565, 567 (Tex. App.—Waco 2002, no pet.).
Absent a timely filed notice of appeal from a final judgment or recognized interlocutory
order, we do not have jurisdiction over the appeal. See Lehmann v. Har-Con Corp., 39
S.W.3d 191, 195 (Tex. 2001); see TEX. R. APP. P. 2, 25.1(b), 26.3; Verburgt, 959 S.W.2d
at 617. If the notice is untimely, then we can take no action other than to dismiss the
appeal. See TEX. R. APP. P. 2; Charette v. Fitzgerald, 213 S.W.3d 505, 509 (Tex. App.—
Houston [14th Dist.] 2006, no pet.).
2 In this case, the judgment of divorce was rendered on June 5, 2014, and appellant
filed a motion for new trial on July 3, 2014, thus the notice of appeal was due on
September 3, 2014. TEX. R. APP. P. 26.1(a)(1). The notice of appeal was not filed until
September 11, 2014, but appellant timely filed a motion or extension of time on
September 12, 2014. See id. R. 26.3.
Appellee Maldonado contends that appellant failed to offer a reasonable
explanation for failing to timely file the notice of appeal because she consciously waited
to file the notice of appeal while she determined whether to appeal. In her motion for
extension of time, appellant stated that she sought additional time to file the notice of
appeal because she “wanted to research and confer with other attorneys before filing a
notice of appeal,” because she “has had numerous prior obligations to attend to in other
cases,” the office for lead counsel “was closed for the Labor Day holiday,” and the “[f]ailure
to file before the deadline was not deliberate or intentional.”
As previously stated, we may extend the time to file a notice of appeal if the
appellant’s motion is timely and reasonably explains the need for an extension of time to
file the notice of appeal. TEX. R. APP. P. 10.5(b)(1)(C); id. R. 26.3. “[A] reasonable
explanation is ‘any 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) (quoting Meshwert v. Meshwert, 549 S.W.2d 383, 384 (Tex. 1977)); see Garcia v.
Kastner Farms, Inc., 114 S.W.2d 668, 669 (Tex. 1989). Because of the liberal standard
of review in these cases, “[a]ny conduct short of deliberate or intentional noncompliance
3 qualifies as inadvertence, mistake or mischance.” Id. at 887. An explanation that
shows a conscious or strategic decision to wait to file the notice of appeal is not
reasonable. 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.) (waiting until representation
secured); Weik v. Second Baptist Church of Houston, 988 S.W.2d 437, 439 (Tex. App.—
Houston [1st Dist.] 1999, pet. denied) (waiting until trial court's plenary power expired in
event trial court reinstated case); see also Allen v. Hinze, No. 02-13-00466-CV, 2014 WL
787867, at *2 (Tex. App.—Fort Worth Feb. 27, 2014, no pet.) (mem. op.) (waiting to file
the notice of appeal because waiting to hold a hearing and rule on motion for new trial
was not inadvertent, mistake, or mischance); Morris v. Frost Nat'l Bank, No. 02–11–
00058–CV, 2011 WL 1532391, at *1 (Tex. App.—Fort Worth Apr.21, 2011, no pet.) (mem.
op.); Zee TV USA, Inc. v. Regency Ctrs., L.P., No. 05–10–01297–CV, 2011 WL 47185,
at *1 (Tex. App.—Dallas Jan.7, 2011, no pet.) (mem. op.); Stephens v. Stephens, No. 2-
10-197-CV, 2010 WL 3433108, at *2 (Tex. App.—Fort Worth Aug. 31, 2010, no pet.)
(mem .op.); Crossland v. Crossland, No. 05–06–00228–CV, 2006 WL 925032, at *2 (Tex.
App.—Dallas Apr.11, 2006, no pet.) (mem .op.).
Applying a liberal standard of review, we conclude that counsel’s explanation does
not show deliberate or intentional noncompliance with the relevant deadline to file the
notice of appeal. See Hone, 104 S.W.3d at 886. Thus, appellant timely filed a motion
for extension of time to file the notice of appeal which provides a reasonable explanation
for the delay. Accordingly, we GRANT appellant’s motion for extension of time to file the
notice of appeal.
4 Whether or not the appeal is timely, however, we must still ascertain whether or
not we otherwise possess appellate jurisdiction over this appeal. Accordingly, we next
address appellee Maldonado’s contention that we lack jurisdiction over this appeal on
grounds that the judgment subject to appeal is interlocutory. Specifically, Maldonado
contends that his claims against appellant, brought by intervention into the divorce
proceeding, and appellant’s counterclaims against him are currently being litigated in the
same trial court cause number in which the “final” judgment of divorce was rendered.
Our review of the docket sheet provided by Maldonado clearly shows that the underlying
trial proceedings are still active. See N-S-W Corp. v. Snell, 561 S.W.2d 798, 799 (Tex.
1977) (orig. proceeding) (holding that “a docket entry may be considered to supply facts
in certain situations).
To be final and appealable, a judgment must dispose of all issues and parties in
the case. Lehmann, 39 S.W.3d at 195. The record before the Court fails to illustrate
that all claims asserted by or against all parties have been disposed. Under these
circumstances, we may “abate the appeal to permit clarification by the trial court.” Id. at
206; see TEX. R. APP. P. 27.2, 44.3, 44.4. Accordingly, we ABATE the appeal and
REMAND the cause to the trial court for clarification. Upon remand, the trial court shall
address whether it intended the judgment to completely dispose of all claims and all
parties. The trial court shall cause its finding and recommendations, together with any
orders it may enter regarding the aforementioned issues, to be included in a supplemental
clerk's record. Furthermore, the trial court shall cause a supplemental reporter's record
of any proceedings to be prepared. The supplemental clerk's record and supplemental
5 reporter's record, if any, shall be filed with the Clerk of this Court on or before the
expiration of thirty days from the date of this order. This appeal will be reinstated upon
receipt of the foregoing materials and upon further order of this Court. In the interim,
appellee Maldonado’s motion to dismiss will be CARRIED WITH THE CASE.
It is so ORDERED.
PER CURIAM
Delivered and filed the 17th day of October, 2014.