15-day Extension to File Notice of Appeal Not Automatic

The Texas Rules of Appellate Procedure (TRAP) allow for a notice of appeal to be filed fifteen (15) days late, but not without a reasonable explanation being set forth in a proper motion. What qualifies as reasonable, and what doesn't? The Dallas Court of Appeals yesterday answered that question, at least in part. Its opinion dismissing the attempted - untimely - appeal provides a reminder that the 15 extra days cannot be taken for granted. Specifically, the court held, that waiting for a ruling on a motion for new trial was not a reasonable explanation for delay in filing the notice of appeal, particularly when the motion had already been overruled by operation of law.

MEMORANDUM OPINION

The Court has before it appellant's September 22, 2009 motion to extend time to file his notice of appeal and appellee's response in opposition to the motion. For the reasons set forth below, we deny the extension motion and dismiss the appeal.

The trial court's judgment was signed on May 20, 2009 and appellant filed a timely motion for new trial. Therefore, his notice of appeal was due by August 18, 2009. See Tex. R. App. P. 26.1(a). The notice of appeal was filed on September 2, 2009, within the fifteen-day period provided by rule 26.3. See Tex. R. App. P. 26.3(a). Therefore, we directed appellant to file a motion to extend time to file his notice of appeal setting forth a reasonable explanation for the need of the extension. See Tex. R. App. P. 10.5(b), 26.3(b); Verburgt v. Dorner, 959 S.W.2d 615 (Tex. 1997).

In his extension motion, appellant asserted, “Plaintiff's motion for new trial was timely filed on June 19, 2009. The hear [sic] date of motion for new trial was set on Sept. 2nd, 2009; Therefore whether to appeal only could be determined after the hearing of motion for new trial.”

Appellee responded that appellant did not provide a reasonable explanation because the motion for new trial had already been overruled by operation of law on August 3, 2009, and appellant did not file his notice of appeal until the 105th day after the trial court's judgment was signed.

We agree that appellant has not provided a reasonable explanation for the need of the extension.

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 deliberated or intentional, but was the result of inadvertence, mistake, or mischance.” Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 669 (Tex. 1989) (internal citation omitted). “Any conduct short of deliberate or intentional noncompliance qualifies as inadvertence, mistake, or mischance. . . .” Id. at 670.

Texas courts have rejected as unreasonable 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.) (holding unreasonable appellant's explanation he failed to file notice of appeal until he found attorney to represent him on appeal at little or no cost); Rodman v. State, 47 S.W.3d 545, 548-49 (Tex. App.-Amarillo 2000, no pet.) (holding unreasonable explanation that when State disclosed, after expiration of time for filing notice of appeal, its intent to indict appellant for other crimes, appellant decided to appeal to preserve eligibility for probation in upcoming trials); Kidd v. Paxton, 1 S.W.3d 309, 310-13 (Tex. App.-Amarillo 1999, no pet.) (op. on reh'g) (holding unreasonable explanations counsel miscalculated due date for filing notice of appeal when he failed to file notice of appeal on miscalculated date and counsel's preoccupation with other cases without detailed explanation of complexities and relevant deadlines of other cases); Weik v. Second Baptist Church of Houston, 988 S.W.2d 437, 439 (Tex. App.-Houston [1st Dist.] 1999, pet. denied) (holding unreasonable appellant's explanation that his lawyer told him if he appealed case while trial court still had authority to reinstate case, trial court would reinstate case and appellant would have difficult time prosecuting claim because of trial court's displeasure with appellant).

This Court has likewise rejected as unreasonable explanations that showed an appellant's decision to wait to file a notice of appeal was not due to inadvertence, mistake, or mischance, but was due to a conscious decision to ignore the appellate timetable in favor of the trial court's jurisdictional timetable. See Crossland v. Crossland, No. 05-06-00228-CV, 2006 WL 925032 (Tex. App.-Dallas Apr. 11, 2006, no pet.) (mem. op.) (per curiam).

Because appellant's explanation in this case shows he was aware of the deadline for filing his notice of appeal, but consciously ignored the deadline in favor of waiting for a ruling on his motion for new trial, we conclude appellant has not provided a reasonable explanation for the need of the extension.

We deny his motion to extend time to file his notice of appeal.

We dismiss the appeal for want of jurisdiction.

PER CURIAM

Zhao, Yumin v. Lone Star Engine Installation Center, Inc., No. 05-09-01055-CV (Tex.App.- Dallas Oct. 6, 2009)
Docket Sheet
Case Type: CONTRACT

Motion to Reinstate Must Be Verified (Sworn)

Reminder from the Fifth Court of Appeals: Motion to Reinstate dwopped case that is not verified (sworn to) does not extend appellate deadline. Consequences of noncompliance are dire: Untimely attempted appeal dismissed for want of jurisdiction (DWOJ):

PER CURIAM OPINION

Appellant Lakeith Amir-Sharif appeals the trial court's judgment dismissing the case for want of prosecution and the trial court's failure to grant appellant's motion to reinstate.After reviewing the record, we questioned our jurisdiction over this appeal.

Amir-Sharif v. Hawkins, No. 05-08-01388-CV (Tex.App.- Dallas, Oct. 1, 2009)

By letter dated August 31, 2009, we notified appellant of this Court's concern regarding its jurisdiction over this appeal and directed appellant to file a letter brief regarding the jurisdictional question by September 10, 2009 and directed appellee to file any response to appellant's letter brief by September 17, 2009, at which time the Court would resolve the jurisdictional question. Appellant filed a brief on September 21, 2009.

We dismiss this appeal for lack of jurisdiction.

The law is well settled and we therefore issue this memorandum opinion. See Tex. R. Civ. P. 47.1.Pursuant to rule of civil procedure 165a and the court's inherent power, on August 7, 2008 the trial court signed an order of dismissal for want of prosecution for appellant's “having failed to take actions heretofore specified by the Court within the time period prescribed, and for failing to announce for trial scheduled for August 4, 2008.”

On August 21, 2008, appellant filed an unverified “Motion to Reinstate Complaint.” Appellant filed his notice of appeal on October 13, 2008, more than thirty days after the August 7, 2008 order of dismissal. Because his motion to reinstate was not verified, the notice of appeal was due 30 days after the dismissal order was signed. See Tex. R. Civ. P. 165a(3) (motion to reinstate shall be verified by the movant or his attorney); Tex. R. App. P. 26.1.

An unverified motion to reinstate does not extend the trial court's plenary power or the deadline for appealing the dismissal of the case. McConnell v. May, 800 S.W.2d 194, 194 (Tex. 1990) (orig. proceeding) (per curiam); Macarangal v. Andrews, 838 S.W.2d 632, 633 (Tex. App.-Dallas 1992, orig. proceeding); Sierra Club v. Tex. Comm'n on Envtl. Quality, 188 S.W.3d 220, 223 (Tex. App.-Austin 2005, no pet.).We conclude appellant's notice of appeal was untimely.

We therefore lack jurisdiction over this appeal. See Footnote 1 We dismiss this appeal for lack of jurisdiction. See Tex. R. App. P. 26.1.

LINDA THOMASCHIEF JUSTICE


Footnote 1 We note a prior appeal of this appellant was dismissed for lack of jurisdiction on the identical basis. See Amir-Sharif v. State Farm Mut. Ins. Co., No. 05-07-01254-CV, 2009 WL 104777, at *1 (Tex. App.-Dallas Jan. 16, 2009, no pet.).
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File Date[10/01/2009]

Motion to Reinstate does not restart appellate time-table

Clock for filing notice of appeal starts ticking when dismissal order is signed. Denial of motion to reinstate is not separately appealable.

Terms: void order, judgment, voidable, non-suit, dismissal, deadline for appeal

McCoy v. North Forest ISD (Tex.App.- Houston [14th Dist.] Nov. 15,2 007)(per curiam)(motion to reinstate, appellate time-table, DWOJ)

M E M O R A N D U M O P I N I O N

Barney L. McCoy attempts to appeal from an order signed March 20, 2007, denying his motion to reinstate the underlying case, in which an order of non-suit was signed May 24, 2001. McCoy filed a motion for rehearing of the denial of his motion to reinstate, and he filed a notice of appeal on June 13, 2007. We dismiss the appeal for want of jurisdiction.

Janice Jackson filed suit against the school district seeking judicial review of a final decision of the Texas Workers' Compensation Commission. McCoy was Jackson's attorney. Pursuant to a settlement agreement, Jackson moved to non-suit the school district, and the trial court signed an order of non-suit on May 24, 2001. On March 1, 2007, McCoy, as a "Party in Interest," moved to reinstate the case, claiming the school district refused to honor the settlement because the underlying judgment is void. Section 410.258(a) of the Texas Labor Code requires any proposed judgment or settlement to be mailed to the executive director of the Workers' Compensation Commission at least 30 days before the judgment is entered. It is undisputed that the proposed judgment was not sent to the director in this case. Section 410.258(f) provides that "[a] judgment entered or settlement approved without complying with the requirements of this section is void." Tex. Lab. Code Ann. ' 410.258(f).

Because it appeared from the record that this court lacks jurisdiction to consider an appeal from a case in which a non-suit was signed in 2001, we notified the parties of our intention to dismiss the appeal for want of jurisdiction unless McCoy filed a response demonstrating both our jurisdiction over this appeal and his standing to bring the appeal as an "Interested Party." See Tex. R. App. P. 42.3(a). McCoy's response fails to demonstrate that this court has jurisdiction over the appeal.

As to his standing to bring this appeal, McCoy asserts that Jackson's current attorney gave his permission, on Jackson's behalf, for him to pursue having the trial court set aside its void judgment. McCoy was not a party to the suit and does not have standing to pursue this appeal. See Gore v. Peck, 191 S.W.3d 927, 929 (Tex. App.-Dallas 2006, no pet.); Johnston v. Crook, 93 S.W.3d 262, 268-69 (Tex. App.-Houston [1st Dist.] 2002, pet. denied).

On the jurisdictional question, McCoy cites to Metropolitan Transit Authority v. Jackson, for the proposition a trial court may set aside its void judgment at any time. 212 S.W.3d 797, 802 (Tex. App.-Houston [1st Dist.] 2006, pet. denied). We respectfully disagree with our sister court.

The Texas Supreme Court explicitly disapproved of the proposition that "if a judgment rendered by a trial court is void it may be set aside by that court at any time." Middleton v. Murff, 689 S.W.2d 212, 213 (Tex. 1985). After the time has passed to timely file a motion for new trial or regular appeal, the exclusive means by which parties can challenge a final judgment based on an allegation that it is void are by filing a writ of error (now restricted appeal) or by filing a bill of review. McEwen v. Harrison, 345 S.W.2d 706, 709‑11 (Tex. 1961); Skadden v. Alfonso, 217 S.W.3d 611, 619 (Tex. App.-Houston [14 Dist.] 2006, pet. filed).

In its response, the school district agrees that the May 24, 2001, judgment is void for failure to comply with section 410.258 of the Labor Code. It contends, however, that the notice requirement in the Labor Code is a statutory prerequisite and failure to comply did not deprive the trial court of jurisdiction. See Dubai Pet. Co. v. Kazi, 12 S.W.3d 71, 71 (Tex. 2000). Even a void judgment can become final for the purposes of appeal. See Newsom v. Ballinger I.S.D., 213 S.W.3d 375, 380 (Tex. App.-Austin 2006, no pet.); In re Vlasak, 141 S.W.3d 233, 238 (Tex. App.-San Antonio 2004, orig. proceeding).

The May 24, 2001, judgment is final. McCoy's motion to reinstate was untimley. The trial court's order denying McCoy's untimely motion to reinstate the case is not a separately appealable order from which the appellate timetable is calculated. See Weik v. Second Baptist Church, 988 S.W.2d 437, 438 (Tex. App.-Houston [1st Dist.] 1999, pet. denied) (holding that deadline for perfecting appeal runs from date of dismissal order, not from date of trial court's ruling on motion to reinstate); Overka v. Bauri, No. 14‑06‑00083‑CV, 2006 WL 2074688, at *1 (Tex. App.-Houston [14 Dist.] July 27, 2006, no pet.) (mem. op.) (order denying motion for new trial is not appealable). Therefore, the notice of appeal was filed too late to appeal the judgment in this case.

Accordingly, the appeal is ordered dismissed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed November 15, 2007.
Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.