C.E. Hodde v. City of Bryan

• Court: Court of Appeals of Texas
• Decided: October 22, 2019
• Docket: 07-19-00353-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-19-00353-CV

C.E. HODDE, APPELLANT

V.

CITY OF BRYAN, APPELLEE

On Appeal from the 272nd District Court Brazos County, Texas Trial Court No. 18-002165-CV-272; Honorable Travis B. Bryan III, Presiding

October 22, 2019

ORDER OF DISMISSAL Before QUINN, C.J., and PIRTLE and PARKER, JJ.

Appellant, C.E. Hodde, appearing pro se, seeks to appeal the trial court’s summary

judgment in favor of Appellee, the City of Bryan.1 Pending before the court is Appellant’s

Motion for Extension of Time to File Notice of Appeal. We deny the motion and dismiss

the appeal for want of jurisdiction.

1 Originally appealed to the Tenth Court of Appeals, this appeal was transferred to this court by the Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. § 73.001 (West 2013). The trial court signed the summary judgment order on August 19, 2019. Because

Hodde did not file any post-judgment motions,2 his notice of appeal was due thirty days

after the judgment was signed, by September 18, 2019. TEX. R. APP. P. 26.1(a). Hodde

did not file a notice of appeal until September 27, 2019. He subsequently filed the pending

motion for extension. In the motion, Hodde states that an “extension of time is necessary

because appellant was unable to hire an attorney to assist him with said appeal by the

deadline.” The City of Bryan opposes the motion.

Pursuant to Rule of Appellate Procedure 26.3, an appellate court may extend the

time to file a notice of appeal if, within fifteen days after the deadline, the appellant files a

notice of appeal and a motion seeking an extension of time. The motion must reasonably

explain the need for the extension. TEX. R. APP. P. 26.3, 10.5(b). A reasonable

explanation is any plausible statement of circumstances indicating that the failure to file

the notice within the required time 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, 669 (Tex. 1989). Any conduct short of deliberate or intentional noncompliance

qualifies as inadvertence, mistake, or mischance. Id. at 670.

Hodde’s explanation does not indicate that he was unaware of or miscalculated

the notice of appeal deadline. Instead, his motion simply states that he filed the notice

2 Hodde filed a document titled “Notice of Appeal and Motion for New Trial” with the trial court clerk on September 27, 2019. The document states that Hodde “is appealing the summary judgment decision,” but does not request that the trial court set aside the judgment or grant a new trial. As a result, we find that the document is only a notice of appeal in substance. Finley v. J.C. Pace Ltd., 4 S.W.3d 319, 320 (Tex. App.—Houston [1st Dist.] 1999, order) (per curiam) (the substance of a motion is not determined by its title but gleaned from the body of the motion and prayer for relief). Further, even if construed as a motion for new trial, the motion was not timely filed. TEX. R. CIV. P. 329b(a) (requiring a motion for new trial to be filed within thirty days after the judgment is signed).

2 untimely because he could not find an attorney to represent him before the deadline. An

explanation that shows a conscious or strategic decision to wait to file a notice of appeal—

such as searching for counsel instead of timely filing a pro se notice of appeal—is not a

reasonable explanation under appellate rule 26.3. See Golden v. Energy & Exploration

Partners, LLC., No. 02-12-00493-CV, 2013 Tex. App. LEXIS 449, *2-3 (Tex. App.—Fort

Worth Jan. 17, 2013, no pet.) (mem. op.) (per curiam) (unable to pay attorney’s retainer

by the deadline); Hykonnen v. Baker Hughes Bus. Support Servs., 93 S.W.3d 562, 563-

64 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (did not have funds to hire counsel by

the time the notice was due).

Hodde has not demonstrated that his late notice of appeal was the result of

inadvertence, mistake, or mischance. Garcia, 774 S.W.2d at 670. We, therefore, find

that he has not reasonably explained the need for an extension and deny his motion to

extend the time to file a notice of appeal. TEX. R. APP. P. 26.3. Because a timely notice

of appeal is essential to invoking this court’s jurisdiction, we have no discretion to permit

Hodde’s untimely filed notice of appeal to confer jurisdiction over the appeal. See TEX.

R. APP. P. 25.1(b), 26.1; Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997).

Accordingly, we dismiss the purported appeal for want of jurisdiction. TEX. R. APP.

P. 42.3(a).

Per Curiam