David Gillespie v. A.L. Hernden and Frederick R. Zlotoucha

Opinion

A.L.

Fourth Court of Appeals

San Antonio, Texas

October 5, 2015

No. 04-15-00405-CV

David GILLESPIE,

Appellant

v.

A.L. HERNDEN and Frederick R. Zlotoucha, Appellees

From the 408th Judicial District Court, Bexar County, Texas Trial Court No. 2013-CI-10278 Honorable Cathleen M. Stryker, Judge Presiding

ORDER

On September 15, 2005, we ordered appellant to offer a reasonable explanation for filing a late notice of appeal. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). “[A]ny plausible statement of circumstances indicating that failure to file . . . was not deliberate or intentional, but was the result of inadvert[e]nce, mistake, or mischance, [would] be accepted as a reasonable explanation.” Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 670 (Tex. 1989); see also Dimotsis v. State Farm Lloyds, 966 S.W.2d 657, 657 (Tex. App.—San Antonio 1998, no pet.). Any conduct short of deliberate or intentional noncompliance qualifies as inadvertence, mistake or mischance, even if that conduct can also be characterized as professional negligence. Garcia, 774 S.W.2d at 670; Dimotsis, 966 S.W.2d at 657. Appellant timely responded to our order, stating that his counsel, in light of other deadlines in his law practice, inadvertently failed to timely file the notice of appeal. The explanation is reasonable. We, therefore, grant the motion for extension of time to file the notice of appeal and ORDER this appeal retained on the court’s docket. We further ORDER that appellant’s brief is due on November 4, 2015.

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Karen Angelini, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 5th day of October, 2015.

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Keith E. Hottle Clerk of Court