Micah Stephene Boyle v. Ellen Boyle Duncan, Charles A. Duncan and Pat Boyle

• Court: Court of Appeals of Texas
• Decided: May 3, 2024
• Docket: 05-24-00085-CV
• Status: Published

Opinion

DISMISS and Opinion Filed May 3, 2024

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-24-00085-CV

MICAH STEPHENE BOYLE, Appellant V. ELLEN BOYLE DUNCAN, CHARLES A. DUNCAN AND PAT BOYLE, Appellees

On Appeal from the 57th District Court Bexar County, Texas Trial Court Cause No. 2020CI02365

MEMORANDUM OPINION Before Justices Reichek, Goldstein, and Garcia Opinion by Justice Reichek This appeal challenges the trial court’s September 28, 2023 final judgment.1

Because a timely motion for new trial was filed, the notice of appeal was due no later

than December 27, 2023, or with an extension motion, no later than January 11,

2024. See TEX. R. APP. P. 26.1(a), 26.3. The notice of appeal was filed January 8,

2024, within the extension period, but without an extension motion.

1 Pursuant to its docket equalization authority, the Texas Supreme Court transferred the appeal from the Fourth Court of Appeals District, San Antonio, Texas, to this Court. See TEX. GOV’T CODE ANN. § 73.001. At our direction, appellant filed an extension motion. See Hone v. Hanafin,

104 S.W.3d 884, 886 (Tex. 2003) (per curiam) (extension motion implied in notice

of appeal filed within extension period). Appellant explains in the motion that she

filed the notice of appeal late “based on the decision by the trial court to hold an

actual hearing” on the new trial motion on December 20, 2023, which was after the

motion had been overruled by operation of law.

To obtain an extension for filing a notice of appeal, the party appealing must

offer a reasonable explanation for the delay in filing. See TEX. R. APP. P.

10.5(b)(1)(C), 26.3(b). The Texas Supreme Court has defined 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.” Hone, 104 S.W.3d at 886 (quoting

Meshwert v. Meshwert, 549 S.W.2d 383, 384 (Tex. 1977)). “Any conduct short of

deliberate or intentional noncompliance qualifies as inadvertence, mistake, or

mischance[.]” Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 670 (Tex. 1989).

As asserted by appellee Ellen Boyle Duncan in her response, waiting for a

trial court to hear a motion for new trial is not a reasonable explanation. See Griego

v. Griego, No. 04-24-00173-CV. 2024 WL 1643711, at *1 (Tex. App.—San Antonio

Apr. 17, 2024, no pet. h.) (per curiam) (mem. op.); N. Cent. Baptist Hosp. v. Chavez,

No. 04-20-00590-CV, 2021 WL 983351, at *1 (Tex. App.—San Antonio Mar. 17,

2021, no pet.) (mem. op.); Daniel v. Daniel, 05-17-00469-CV, 2017 WL 2645432,

–2– at *1 (Tex. App.—Dallas June 20, 2017, no pet.) (mem. op.). Accordingly, we deny

the extension motion and dismiss the appeal. See TEX. R. APP. P. 42.3(a); 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 a notice of appeal is jurisdictional).

/Amanda L. Reichek/ AMANDA L. REICHEK JUSTICE 240085F.P05

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

MICAH STEPHENE BOYLE, On Appeal from the 57th District Appellant Court, Bexar County, Texas Trial Court Cause No. 2020CI02365. No. 05-24-00085-CV V. Opinion delivered by Justice Reichek, Justices Goldstein and ELLEN BOYLE DUNCAN, Garcia participating. CHARLES A. DUNCAN AND PAT BOYLE, Appellees

In accordance with this Court’s opinion of this date, we DISMISS the appeal.

We ORDER that appellees Ellen Boyle Duncan, Charles A. Duncan and Pat Boyle recover their costs, if any, of this appeal from appellant Micah Stephene Boyle.

Judgment entered May 3, 2024

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