Syed Habeeb Pasha, Individually, and Sameday Passport & Visa Expedited Services 2, Inc. v. YP Advertising, L.P.

• Court: Court of Appeals of Texas
• Decided: August 21, 2014
• Docket: 01-14-00456-CV
• Status: Published

Opinion

Opinion issued August 21, 2014

In The Court of Appeals For The First District of Texas

NO. 01-14-00456-CV

SYED HABEEB PASHA, INDIVIDUALLY, AND SAMEDAY PASSPORT & VISA EXPEDITED SERVICES 2, INC., Appellants

V.

YP ADVERTISING, L.P., Appellee

On Appeal from the County Civil Court at Law No. 2 Harris County, Texas Trial Court Cause No. 1034393

MEMORANDUM OPINION

Appellants, Syed Habeeb Pasha, Individually, and Sameday Passport & Visa

Expedited Services 2, Inc., filed a motion for extension of time to file notice of

appeal to attempt to make their appeal from the trial court’s default judgment

timely. We deny the motion and dismiss the appeal for want of jurisdiction. Generally, a notice of appeal is due within thirty days after the judgment is

signed. See TEX. R. APP. P. 26.1. The deadline to file a notice of appeal is

extended to 90 days after the date the judgment is signed if, within 30 days after

the judgment is signed, any party files a motion for new trial, motion to modify the

judgment, motion to reinstate, or, under certain circumstances, a request for

findings of fact and conclusions of law. Id.; TEX. R. CIV. P. 329b(a), (g). The time

to file a notice of appeal may also be extended if, within 15 days after the deadline

to file the notice of appeal, a party properly files a motion for extension. See TEX.

R. APP. P. 10.5(b), 26.3. A motion for extension of time is necessarily implied

when an appellant, acting in good faith, files a notice of appeal beyond the time

allowed by Rule 26.1, but within the 15-day extension period provided by Rule

26.3. See TEX. R. APP. P. 26.1, 26.3; Verburgt v. Dorner, 959 S.W.2d 615, 617–18

(Tex. 1997).

Here, the trial court signed the default judgment on February 21, 2014.

Appellants timely filed a motion for new trial on March 6, 2014. See TEX. R. CIV.

P. 329b. Therefore, appellants’ notice of appeal was due by May 22, 2014. See

TEX. R. APP. P. 26.1.

Appellants filed their notice of appeal on June 4, 2014 and filed a motion to

extend the deadline to file a notice of appeal on June 11, 2014. Appellants’ notice

of appeal was filed within the 15-day extension period. See TEX. R. APP. P. 26.3.

2 Appellants were still required, however, to offer a reasonable explanation of the

need for an extension. See TEX. R. APP. P. 10.5(b)(1)(C), (b)(2)(A), 26.3(b); Jones

v. City of Houston, 976 S.W.2d 676, 677 (Tex. 1998). 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.’” Zhao v. Lone Star Engine Installation Ctr., No. 05-09-01055-CV,

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

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

Here, appellants claimed that it was reasonable to hold off on filing a notice

of appeal earlier because they believed that there was a chance the trial court would

grant their motion for a new trial after holding a hearing on it on May 27, 2014.

Appellants, however, ignored the fact that because their motion for new trial had

not been ruled upon within 75 days after the default judgment, it had already been

overruled by operation of law on May 7, 2014. See TEX. R. CIV. P. 329b(c); Zhao,

2009 WL 3177578, at *1. Thus, appellants’ explanation indicates that they

“consciously ignored the deadline in favor of waiting for a ruling on [their] motion

for new trial,” making their failure to timely file their notice of appeal

unreasonable. Zhao, 2009 WL 3177578, at *2; see also Allen v. Hinze, No. 02-13-

00466-CV, 2014 WL 787867, at *2 (Tex. App.—Fort Worth Feb. 27, 2014, no

3 pet.) (finding the appellant’s explanation, that she did not timely file her notice of

appeal because she was waiting on the trial court to hold a hearing and rule on her

motion for new trial, unreasonable because it “suggests that she was aware of the

deadline but consciously chose to ignore it.”)

Because appellants offered no reasonable explanation that indicates the late

notice of appeal filing was not deliberate or intentional, the notice of appeal was

not timely. See Garcia, 774 S.W.2d at 670. Without a timely filed notice of

appeal, this Court lacks jurisdiction over the appeal. See TEX. R. APP. P. 25.1.

On July 29, 2014, the Clerk of this Court notified appellants that their appeal

was subject to dismissal for want of jurisdiction unless, within 10 days of the

Notice, they filed a response providing a reasonable explanation for untimely filing

the notice of appeal. See TEX. R. APP. P. 10.5(b)(1)(C), (b)(2)(A), 26.1, 26.3,

42.3(a); Jones, 976 S.W.2d at 677.

Appellants have not timely filed any response. Instead, on August 11, 2014,

appellees filed a memorandum of satisfaction and release of judgment, stating that

appellees have released the default judgment after appellants had fully and

completely satisfied it by making monetary payments to appellees. Thus, this

appeal appears to have been rendered moot. See In re Sierra Club, 420 S.W.3d

153, 156–57 (Tex. App.—El Paso 2012, orig. proceeding); see also Tex. A&M

4 Univ.–Kingsville v. Yarbrough, 347 S.W.3d 289, 290–91 (Tex. 2011); cf. TEX. R.

APP. P. 42.3(a).

Accordingly, we deny appellants’ motion for extension of time to file notice

of appeal and dismiss this appeal. See TEX. R. APP. P. 42.3(a), (c), 43.2(f). We

dismiss any pending motions as moot.

PER CURIAM

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.