In the Interest of S v. a Minor Child v. the State of Texas

Opinion

DISMISS and Opinion Filed June 14, 2023

In The

Court of Appeals

Fifth District of Texas at Dallas No. 05-23-00324-CV

IN THE INTEREST OF S.V., A MINOR CHILD

On Appeal from the 256th Judicial District Court Dallas County, Texas

Trial Court Cause No. DF-04-11968

MEMORANDUM OPINION

Before Justices Pedersen, III, Garcia, and Kennedy Opinion by Justice Pedersen, III Appellant appeals from the trial court’s December 28, 2022 judgment in the

underlying suit for enforcement of a child support order. We questioned our jurisdiction over the appeal as it appeared to be untimely filed. See 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) (timely filing of notice of appeal is jurisdictional). Because appellant timely filed a motion for new trial, the notice of appeal was due March 28, 2023 or, with an extension motion, April 12, 2023. See TEX. R. APP. P. 26.1(a), 26.3. Appellant filed a notice of appeal on April 4, 2023.

An appellate court may extend the time for filing the notice of appeal under rule 26.3 if the party filing the appeal offers a reasonable explanation for the delay in filing. See TEX. R. APP. P. 10.5(b), 26.3(b). The Texas Supreme Court has defined

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a “reasonable explanation” as “any 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.” Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 670 (Tex. 1989) (citation omitted). An explanation that demonstrates a conscious or strategic decision to wait is not reasonable. See Daoudi v. Klalib, No. 05-21-00145-CV, 2021 WL 1660644, at *1 (Tex. App.—Dallas Apr. 28, 2021, no pet.) (mem. op.). A decision by a party to delay filing a notice of appeal until the trial court rules on motion for new trial does not constitute a reasonable explanation. See id.

At our direction, appellant filed an extension motion. Appellant explains in the motion that he delayed filing the notice of appeal past the due date as he “was waiting for rulings on his post-judgment motions.” As noted above, a conscious decision to delay filing a notice of appeal pending a trial court’s ruling on a motion for new trial does not constitute a reasonable explanation. See id. Accordingly, we deny the extension motion and dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a).

/Bill Pedersen, III//

230324f.p05 BILL PEDERSEN, III JUSTICE

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Court of Appeals

Fifth District of Texas at Dallas JUDGMENT

IN THE INTEREST OF S.V., A On Appeal from the 256th Judicial MINOR CHILD District Court, Dallas County, Texas Trial Court Cause No. DF-04-11968.

No. 05-23-00324-CV Opinion delivered by Justice Pedersen, III. Justices Garcia and Kennedy participating.

In accordance with this Court’s opinion of this date, the appeal is DISMISSED.

Judgment entered this 14th day of June, 2023.