James Polk v. Dallas County, Texas

• Court: Court of Appeals of Texas
• Decided: March 31, 2014
• Docket: 05-13-01731-CV
• Status: Published

Opinion

Dismiss and Opinion Filed March 31, 2014

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-13-01731-CV

JAMES POLK, Appellant V. DALLAS COUNTY, TEXAS, Appellee

On Appeal from the 134th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-10-03558

MEMORANDUM OPINION Before Chief Justice Wright, and Justices Lang-Miers and Brown Opinion by Chief Justice Wright Before the Court is appellant’s March 6, 2014 opposed motion to extend time to file

notice of appeal. Because we conclude appellant did not provide a reasonable explanation for

the need for an extension, we deny appellant’s motion and dismiss this appeal for lack of

jurisdiction.

The trial court signed the judgment in this case on August 5, 2013. Appellant timely filed

a motion to reconsider on August 19, 2013. Thus, appellant’s notice of appeal was due on

November 4, 2013, ninety days after the judgment was signed. TEX. R. APP. P. 26.1(a).

Appellant’s notice of appeal was filed on November 18, 2013, within the fifteen-day period

provided by rule 26.3. TEX. R. APP. P. 26.3(a). Therefore, we directed appellant to file a motion

to extend time to file his notice of appeal setting forth a reasonable explanation for the need of the extension. In response, appellant filed a motion explaining he did not file his notice of

appeal within the ninety day deadline because he “undertook to determine whether appellant

should appeal . . . and whether the decision to appeal made economic sense for appellant.”

Appellee did not file a response to the motion.

The Texas Supreme Court has defined “reasonable explanation” to mean any plausible

statement of circumstance indicating that failure to file within the required period was not

deliberate or intentional, but was the result of inadvertence, mistake, or mischance. Garcia v.

Kastner Farms, Inc., 774 S.W.3d 668, 669 (Tex. 1989). The supreme court emphasized that

“any conduct short of deliberate or intentional noncompliance qualifies as inadvertence, mistake,

or mischance.” Id.

Texas courts have rejected as unreasonable explanations that show an appellant’s

conscious or strategic decision to wait to file a notice of appeal, reasoning the explanations do

not show inadvertence, mistake, or mischance. See, e.g., Hykonnen v. Baker Hughes Bus.

Support Serv., 93 S.W.3d 562, 563-64 (Tex. App.—Houston [14th Dist.], 2002, no pet.) (failed to

file notice of appeal until he found attorney to represent him on appeal at little or no cost); Weik

v. Second Baptist Church of Houston, 988 S.W.2d. 437, 439 (Tex. App.—Houston [1st Dist.]

1999, pet. denied). (appellant did not file notice of appeal because lawyer told him that if he

appealed the case while trial court still had authority to reinstate, appellant would have a difficult

time prosecuting his claim because of trial court’s displeasure). And, this Court has likewise

rejected as unreasonable an appellant’s explanation when appellant made a conscious decision to

ignore the appellate timetable in favor of the trial court’s jurisdictional timetable. See Crossland

v. Crossland, No. 05-06099228-CV, 2006 WL 925032 (Tex. App.—Dallas Apr. 11, 2006, no

pet.)(Mem. Op.).

–2– Because appellant’s explanation in this case shows he was aware of the deadline for filing

his notice of appeal, but consciously ignored the deadline while making a determination about

whether to file an appeal, we conclude appellant has not provided a reasonable explanation for

the need for an extension. We deny appellant’s motion to extend time to file his notice of appeal.

Without a timely filed notice of appeal, this Court lacks jurisdiction. TEX. R. APP. P.

25.1(b). Accordingly, we dismiss this appeal for lack of jurisdiction.

131730F.P05 /Carolyn Wright/ CAROLYN WRIGHT CHIEF JUSTICE

–3– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

JAMES POLK, Appellant On Appeal from the 134th Judicial District Court, Dallas County, Texas No. 05-13-01731-CV V. Trial Court Cause No. DC-10-03558. Opinion delivered by Chief Justice Wright. DALLAS COUNTY, TEXAS, Appellee Justices Lang-Miers and Brown participating.

In accordance with this Court’s opinion of this date, this appeal is DISMISSED. It is ORDERED that appellee DALLAS COUNTY, TEXAS recover its costs of this appeal from appellant JAMES POLK.

Judgment entered March 31, 2014

/Carolyn Wright/ CAROLYN WRIGHT CHIEF JUSTICE

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