Real Estate Arbitrage, LLC v. Greg Gutman

• Court: Court of Appeals of Texas
• Decided: February 27, 2018
• Docket: 05-17-01336-CV
• Status: Published

Opinion

DISMISS; and Opinion Filed February 27, 2018.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-17-01336-CV

REAL ESTATE ARBITRAGE PARTNERS, LLC, Appellant V. GREG GUTMAN, Appellee

On Appeal from the 95th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-17-01809

MEMORANDUM OPINION Before Justices Lang, Fillmore, and Schenck Opinion by Justice Schenck Before the Court is appellant’s motion to extend time to file its notice of appeal. The trial

court signed the judgment in this case on August 7, 2017. Appellant timely filed a motion for new

trial, and on November 20, filed both its notice of appeal and motion to extend time to file a notice

of appeal. TEX. R. APP. P. 10.5(b), 26.3. The notice of appeal was filed more than ninety days

after the signing of the judgment, making the appeal turn on the motion for extension. Appellee

responded in opposition to appellant’s motion to extend.

Under rule 10.5(b) a motion to extend time to file the notice of appeal must state, among

other items, “the facts relied on to reasonably explain the need for an extension.” TEX. R. APP. P.

10.5(b)(1)(C). In its motion, appellant offers as its sole explanation for the untimely filing that the parties were attempting to reach a settlement agreement. In response, appellee argues that appellant

does not show “the late filing was the result of excusable oversight or genuine error.”

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

statement of circumstances 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) (quoting Meshwert v. Meshwert, 549

S.W.2d 383, 384 (Tex. 1977)). Texas courts have rejected as unreasonable those explanations that

show a defendant’s conscious or strategic decision to wait to file a notice of

appeal, reasoning the explanations did not show inadvertence, mistake, or mischance. See,

e.g., Hykonnen v. Baker Hughes Bus. Support Servs., 93 S.W.3d 562, 563-64 (Tex. App.—

Houston [14th Dist.] 2002, no pet.).

This Court has previously held that failing to comply with a deadline as a result

of settlement negotiations is not a “reasonable explanation” but rather a deliberate and intentional

choice. Inman’s Corp. v. Transamerica Commercial Fin. Corp., 825 S.W.2d 473, 477, 482 (Tex.

App. —Dallas 1991, no writ) (op. and op. on reh’g). Barring reconsideration by the Court sitting

en banc or contrary intervening authority from the supreme court, prior panel decisions remain

binding on all future panels.

Considering the facts upon which appellant relies and this Court’s prior holding, we must

conclude that appellant has failed to provide a reasonable explanation for the delay. We deny

appellant’s motion to extend time to file notice of appeal. Without a timely filed notice of appeal,

–2– this Court lacks jurisdiction. TEX. R. APP. P. 25.1(b). Accordingly, we dismiss this appeal for lack

of jurisdiction. See TEX. R. APP. P. 42.3(a).

/David J. Schenck/ DAVID J. SCHENCK JUSTICE

171336F.P05

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

REAL ESTATE ARBITRAGE On Appeal from the 95th Judicial District PARTNERS, LLC, Appellant Court, Dallas County, Texas Trial Court Cause No. DC-17-01809. No. 05-17-01336-CV V. Opinion delivered by Justice Schenck, Justices Lang and Fillmore participating. GREG GUTMAN, Appellee

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

It is ORDERED that appellee Greg Gutman recover his costs, if any, of this appeal from appellant Real Estate Arbitrage Partners, LLC.

Judgment entered this 27th day of February, 2018.

–4–