Dalla K. Guerrieri v. Deutsche Bank National Trust Company, as Trustee for Carrington Mortgage Loan Trust, Series 2005-NC3 Asset Backed Pass Through Certificates

• Court: Court of Appeals of Texas
• Decided: August 24, 2021
• Docket: 07-21-00166-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-21-00166-CV

DALLA K. GUERRIERI, APPELLANT

V.

DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR CARRINGTON MORTGAGE LOAN TRUST, SERIES 2005-NC3 ASSET BACKED PASS THROUGH CERTIFICATES, APPELLEE

On Appeal from the 99th District Court Lubbock County, Texas Trial Court No. 2019-535,857, Honorable J. Phillip Hays, Presiding

August 24, 2021 MEMORANDUM OPINION Before QUINN, C.J., and PIRTLE and DOSS, JJ.

Appellant, Dalla K. Guerrieri, attempts to appeal the trial court’s order granting

summary judgment in favor of Appellee, Deutsche Bank National Trust Company, as

trustee for Carrington Mortgage Loan Trust, Series 2005-NC3 Asset Backed Pass

through Certificates. Now pending before this Court is Guerrieri’s motion to extend the

time to file her notice of appeal. We deny the motion and dismiss the appeal for want of

jurisdiction. The trial court signed the “Order Granting Plaintiff’s Motion for Summary

Judgment” on June 10, 2021. No motion for new trial or motion to modify the judgment

was filed. Accordingly, Guerrieri’s notice of appeal was due within thirty days after the

order was signed, i.e. by July 12, 2021. See TEX. R. APP. P. 4.1(a), 26.1(a). Guerrieri

filed a notice of appeal on July 20, 2021, followed by the pending motion for an extension

of time. In her motion, Guerrieri states that “[t]he notice of appeal was not timely filed

because Appellant’s counsel did not receive the notice of final judgment until June 15,

2021, even though the judgment was signed June 10, 2021, and Appellant needed time

to evaluate whether filing a notice of appeal was in her best interests.”

Under 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. 10.5(b), 26.3. A reasonable explanation is

any plausible statement of circumstances indicating that the failure to file the notice of

appeal 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.

Guerrieri’s first reason for showing her failure to timely file a notice of appeal

suggests her counsel made a mistake in calculating the deadline based on the date

counsel received the final judgment rather than when the judgment was signed. However,

even if we were to calculate the appellate deadline considering counsel’s five-day error,

the notice of appeal is still untimely. See Kidd v. Paxton, 1 S.W.3d 309, 310 (Tex. App.—

2 Amarillo 1999, no pet.) (denying motion for rehearing following dismissal of untimely

appeal despite counsel’s explanation that he miscalculated the perfection deadline; even

if the court extended the appellate deadlines by the requisite time to accommodate

counsel’s error, the notice of appeal was nevertheless untimely).

Guerrieri’s other explanation for her untimely notice of appeal does not

demonstrate her failure was the result of inadvertence, mistake, or mischance. See

Amegy Bank of Tex. v. Titan Servs., LLC, No. 02-09-00420-CV, 2010 Tex. App. LEXIS

149, at *3 (Tex. App.—Fort Worth Jan. 7, 2010, no pet.) (per curiam) (mem. op.). Rather,

her explanation shows that she made a conscious decision to delay filing her notice of

appeal while she evaluated whether to appeal. Her delay in filing was, thus, the result of

a deliberate or intentional decision. See Gibbs v. Allsup Enters., Inc., 153 S.W.3d 603,

604 (Tex. App.—Amarillo 2004, no pet.) (concluding that appellant’s delay in filing a notice

of appeal until after a final decision to appeal had been made was an intentional act).

We, thus, find that Guerrieri has not reasonably explained the need for an

extension of time to file her notice of appeal. For this reason, we deny her motion for

extension. See TEX. R. APP. P. 26.3. Because a timely notice of appeal is essential to

invoking our jurisdiction, we have no jurisdiction to consider Guerrieri’s untimely appeal.

See TEX. R. APP. P. 25.1(b), 26.1; Verburgt v. Dorner, 959 S.W.2d 615, 616-17 (Tex.

1997).

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

APP. P. 42.3(a).

Per Curiam