Teresa Shippy v. Travis Boyd, Independent of the Estate of Daniel Allen Boyd

• Court: Court of Appeals of Texas
• Decided: September 19, 2022
• Docket: 07-22-00188-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-22-00188-CV ________________________

TERESA SHIPPY, APPELLANT

V.

TRAVIS BOYD, INDEPENDENT EXECUTOR OF THE ESTATE OF DANIEL ALLEN BOYD, DECEASED, APPELLEE

On Appeal from the 84th District Court Hansford County, Texas Trial Court No. CV-05667, Honorable Curt Brancheau, Presiding

September 19, 2022

ORDER Before QUINN, C.J., and PARKER and DOSS, JJ. 1

Pending before the court are the motions of Travis Boyd, Independent Executor of

the Estate of Daniel Allen Boyd, to dismiss the appeal and extend the deadline to file his

1 Justice Doss not participating. appellee’s brief. He contends dismissal is appropriate because of the purported

untimeliness of Teresa Shippy’s notice of appeal.

The record discloses that Shippy filed her notice of appeal within 15 days after the

applicable deadline. The deadline fell on June 14, 2022. Though leave was not

requested to file it belatedly, such a motion is implied under these circumstances. See

Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (stating that a motion for an

extension of time to file a notice of appeal is implied when an appellant tenders a notice

of appeal within fifteen days after the notice of appeal deadline). Nevertheless, the

appellant must still reasonably explain the delay. Jones v. City of Houston, 976 S.W.2d

676, 677 (Tex. 1998). And, a reasonable explanation consists of any plausible statement

of circumstances indicating that the delay was neither deliberate nor intentional, but rather

inadvertent or from mistake or mischance. Garcia v. Kastner Farms, Inc., 774 S.W.2d

668, 669 (Tex. 1989).

Shippy explained that she began her calculation of the appellate deadline not from

the date on which the trial court signed the final summary judgment under attack. Rather,

she did so from the date on which the court signed an order quashing a post-judgment

notice of deposition, i.e., an order that did not modify the final judgment in any way.

Despite the long-settled nature of the law requiring the calculation of the time period to

begin on the date the trial court signed the final judgment, her excuse evinces a mistake

within the scope of Garcia and Jones. Consequently, we deny both the motion to dismiss

and the implied motion to extend the deadline for filing appellee’s brief. Boyd’s brief is

due thirty days after Shippy’s brief is filed.

Per Curiam