Careington International Corporation v. First Call Telemedicine, LLC

Opinion

GRANT; VACATE; REINSTATE and Opinion Filed November 23, 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 ON MOTION FOR REHEARING Before Chief Justice Burns, Justice Whitehill, and Justice Molberg Opinion by Chief Justice Burns

We dismissed this accelerated appeal, filed within the extension period

provided by Texas Rule of Appellate Procedure 26.3, as untimely after concluding

appellant’s one-sentence explanation for the delay in filing the notice of appeal was

not reasonable. See TEX. R. APP. P. 10.5(b), 26.3(b). The explanation appellant

provided in its extension motion was that it “waited to file its Notice of Appeal to

allow the trial court to consider and rule upon . . . its Motion for Reconsideration.”

Before the Court is appellant’s October 27, 2020 motion for rehearing. In the

motion, appellant asserts the explanation provided in its extension motion was “incomplete” and offers a more detailed explanation for the delay in filing the

appeal. Appellant explains the delay was not based on a deliberate or intentional

failure to comply with the appellate rules and deadlines but was the result of

counsel’s mistake. According to appellant, counsel researched the deadline to file

the notice of appeal within one week of the appealed order being signed and

determined appellant had twenty days from the date the order was signed to perfect

an appeal or, with a “rudimentary” extension motion, thirty-five days. Although a

motion for extension of time to file a notice of appeal requires that a “reasonable

explanation” be provided for the delay in filing the appeal, see TEX. R. APP. P.

10.5(b), 26.3, counsel did not “research what constitutes a ‘reasonable explanation’”

and assumed an extension “would be routinely and automatically granted.”

Appellant’s extension motion was, therefore, “fairly cursory and did not include a

thorough or detailed explanation of the need for the extension.” Appellant asserts it

“always” intended to appeal and, although the denial of the motion for

reconsideration “triggered” the filing, appellant believed the appeal could be filed

without a problem within thirty-five days of date the appealed order was signed.

The Texas Supreme Court has defined a “reasonable explanation” for

extension purposes 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,

–2– 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).

Although intentionally waiting for a trial court to hear a motion for new trial

is not a reasonable explanation for delaying an appeal, see Daniel v. Daniel, 05-17-

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

(mem. op.), we conclude that the more detailed explanation appellant provides in the

motion for rehearing demonstrates the delay here was not deliberate or intentional.

Accordingly, we GRANT the motion. We VACATE our October 12, 2020 opinion

and judgment and REINSTATE the appeal.

As the appellate record has been filed, we ORDER appellant to file its

opening brief no later than December 14, 2020.

/Robert D. Burns, III/ ROBERT D. BURNS, III CHIEF JUSTICE

200841NF.P05

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