Careington International Corporation v. First Call Telemedicine, LLC

• Court: Court of Appeals of Texas
• Decided: October 12, 2020
• Docket: 05-20-00841-CV
• Status: Published

Opinion

DISMISS and Opinion Filed October 12, 2020

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-20-00841-CV

CAREINGTON INTERNATIONAL CORPORATION, Appellant V. FIRST CALL TELEMEDICINE, LLC, Appellee

On Appeal from the 471st Judicial District Court Collin County, Texas Trial Court Cause No. 471-02335-2019

MEMORANDUM OPINION Before Chief Justice Burns, Justice Whitehill, and Justice Molberg Opinion by Chief Justice Burns Before the Court is appellant’s motion to extend time to file its notice of

accelerated appeal from the trial court’s interlocutory order granting appellee’s

special appearance. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(7); TEX.

R. APP. P. 28.1(a). The notice of appeal was filed outside the twenty-day deadline

set by Texas Rule of Appellate Procedure 26.1(b) but within the fifteen-day

extension period provided by appellate rule 26.3. See TEX. R. APP. P. 26.1(b), 26.3.

Appellant explains in the motion it “waited to file its Notice of Appeal to allow the

trial court to consider and rule upon . . . its Motion for Reconsideration.” The timely filing of a notice of appeal is jurisdictional. Brashear v. Victoria

Gardens of McKinney, L.L.C., 302 S.W.3d 542, 545 (Tex. App.—Dallas 2009, no

pet.) (op. on reh’g). To obtain an extension for filing a notice of appeal, the party

appealing must offer a reasonable explanation for the delay in filing. See TEX. R.

APP. P. 10.5(b)(1)(C), 26.3(b). The Texas Supreme Court has defined 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) (per curiam) (quoting Meshwert v. Meshwert, 549 S.W.2d 383, 384

(Tex. 1977)). “Any conduct short of deliberate or intentional noncompliance

qualifies as inadvertence, mistake, or mischance[.]” Garcia v. Kastner Farms, Inc.,

774 S.W.2d 668, 670 (Tex. 1989).

We have previously concluded that intentionally waiting for a trial court to

hear a motion for new trial is not a reasonable explanation. See Daniel v. Daniel,

05-17-00469-CV, 2017 WL 2645432, at *1 (Tex. App.—Dallas June 20, 2017, no

pet.) (mem. op.); Zhao v. Lone Star Engine Installation Ctr., Inc., No. 05-09-01055-

CV, 2009 WL 3177578, at *1, 2 (Tex. App.—Dallas Oct. 6, 2009, pet. denied) (per

curiam) (mem. op.).

–2– Accordingly, we deny the extension motion and dismiss the appeal. See TEX.

R. APP. P. 42.3(a); Brashear, 302 S.W.3d at 545.

/Robert D. Burns, III/ ROBERT D. BURNS, III CHIEF JUSTICE 200841F.P05

–3– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

CAREINGTON INTERNATIONAL On Appeal from the 471st Judicial CORPORATION, Appellant District Court, Collin County, Texas Trial Court Cause No. 471-02335- No. 05-20-00841-CV V. 2019. Opinion delivered by Chief Justice FIRST CALL TELEMEDICINE, Burns, Justices Whitehill and LLC, Appellee Molberg participating.

In accordance with this Court’s opinion of this date, we DISMISS the appeal.

We ORDER that appellee First Call Telemedicine, LLC recover its costs, if any, of this appeal from appellant Careington International Corporation.

Judgment entered October 12, 2020.

–4–