Kerwin Gibbs v. Allsup Enterprises, Inc.

• Court: Court of Appeals of Texas
• Decided: August 18, 2004
• Docket: 07-04-00315-CV
• Status: Published

Opinion

NO. 07-04-0315-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

AUGUST 18, 2004

______________________________

KERWIN GIBBS, APPELLANT

V.

ALLSUP ENTERPRISES, INC., APPELLEE

_________________________________

FROM THE 64TH DISTRICT COURT OF HALE COUNTY;

NO. A33080-0310; HONORABLE ROBERT KINKAID, JR., JUDGE

_______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.

OPINION

Kerwin Gibbs appeals from an adverse summary judgment. Determining that he did

not reasonably explain the need for an extension of time to file his late-filed notice of

appeal, we dismiss for want of jurisdiction. The 64th District Court of Hale County granted summary judgment in favor of

Allsup’s Enterprises, Inc., and against Kevin Gibbs. Gibbs filed a motion for new trial which

was overruled as a matter of law. He filed his notice of appeal late, but within 15 days after

the deadline for filing the notice. See TEX . R. APP. P. 26.3.1 Accompanying the late-filed

notice of appeal was a motion to enlarge time for filing of notice of appeal which we

deemed to be a motion for extension of time to file the notice of appeal. Pursuant to

direction of the court, Gibbs filed further documentation explaining his need for an

extension of time. See Verburgt v. Dorner, 959 S.W.2d 615, 617-18 (Tex. 1997).

Gibbs’ explanation for failing to timely file his notice of appeal is that his attorney

was waiting to review the trial court’s order overruling his motion for new trial, after which

his attorney was to confer with him and a final decision would be made about whether to

appeal. The trial court, however, did not enter an order overruling the motion for new trial.

Gibbs does not set out facts as to when he and his attorney made the final decision

to appeal. It is apparent from his motion to enlarge time for filing notice and subsequently-

filed affidavit from his attorney, however, that once a final decision to appeal was made,

the notice of appeal was filed.

A “reasonable explanation” for needing an extension of time to file notice of appeal

includes any plausible statement of circumstances indicating that the late filing was not

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

Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 670 (Tex. 1989). If the decision to delay

1 Further reference to a rule of appellate procedure will be by reference to “TRAP_.”

-2- filing notice of appeal until after the appropriate deadline was a deliberate or intentional

decision, we may not extend the time for filing a notice of appeal, and we must dismiss for

want of jurisdiction. See Garcia, 774 S.W.2d at 670; Meshwert v. Meshwert, 549 S.W.2d

383, 384 (Tex. 1977); Kidd v. Paxton, 1 S.W.3d 309, 310 (Tex.App.--Amarillo 1999, pet.

denied).

Filing of Gibbs’ notice of appeal was intentionally delayed until a final decision had

been made to appeal. Such circumstances do not comprise a reasonable explanation for

needing an extension of time for filing notice of appeal. See Garcia, 774 S.W.2d at 670;

Meshwert, 549 S.W.2d at 384; Kidd, 1 S.W.3d at 310.

The appeal is dismissed for want of jurisdiction.

Per Curiam

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