Samir Daoudi v. Abdulrhman M. Klalib

• Court: Court of Appeals of Texas
• Decided: April 28, 2021
• Docket: 05-21-00145-CV
• Status: Published

Opinion

DISMISS and Opinion Filed April 28, 2021

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00145-CV

SAMIR DAOUDI, Appellant V. ABDULRHMAN M. KLALIB, Appellee

On Appeal from the 193rd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-20-17213

MEMORANDUM OPINION Before Justices Molberg, Goldstein, and Smith Opinion by Justice Smith Before the Court is appellant’s motion for extension of time to file his notice

of appeal from the trial court’s summary judgment. The notice of appeal was filed

outside the ninety-day deadline set by Texas Rule of Appellate Procedure 26.1(a),

applicable when, as here, a motion for new trial or reconsideration is filed, but within

the fifteen-day extension period provided by appellate rule 26.3. See TEX. R. APP.

P. 26.1(a)(1), 26.3. Appellant explains in the motion that the notice of appeal was

not timely filed because he “was awaiting the decision of the trial court on his Motion

for Reconsideration and the expiration of the trial court’s plenary power over this case.” Appellee opposes the motion, asserting appellant’s explanation is not

reasonable. We agree with appellee.

The timely filing of a notice of appeal is jurisdictional. 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). 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 v. Hanafin, 104 S.W.3d 884, 886

(Tex. 2003) (per curiam) (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).

We have previously concluded that intentionally waiting for a trial court to

hear a motion for new trial is not a reasonable explanation. See Daniel v. Daniel,

05-17-00469-CV, 2017 WL 2645432, at *1 (Tex. App.—Dallas June 20, 2017, no

pet.) (mem. op.); Zhao v. Lone Star Engine Installation Ctr., Inc., No. 05-09-01055-

CV, 2009 WL 3177578, at *1, 2 (Tex. App.—Dallas Oct. 6, 2009, pet. denied) (per

curiam) (mem. op.). Accordingly, we deny the extension motion and dismiss the

–2– appeal and all other pending motions for want of jurisdiction. See TEX. R. APP. P.

42.3(a); Brashear, 302 S.W.3d at 545.

/Craig Smith/ CRAIG SMITH JUSTICE 210145F.P05

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

SAMIR DAOUDI, Appellant On Appeal from the 193rd Judicial District Court, Dallas County, Texas No. 05-21-00145-CV V. Trial Court Cause No. DC-20-17213. Opinion delivered by Justice Smith, ABDULRHMAN M. KLALIB, Justices Molberg and Goldstein Appellee participating.

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

We ORDER that appellee Abdulrhman M. Klalib recover his costs, if any, of this appeal from appellant Samir Daoudi.

Judgment entered April 28, 2021.

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