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

Hearing on Motion to Reinstate Can Cure Error in Notice or Render it Harmless

What is the effect of filing - and obtaining a hearing on - a motion to reinstate a case terminated by dismissal for want of prosecution? A recent appellate decision from the First Court of Appeals in Houston in a high-profile case supports the proposition that such a hearing provides a substitute for proper notice of intent to dismiss and an opportunity to object and be heard on the issue. Since the hearing on the motion to reinstate/for new trial after the DWOP allows the aggrieved party an opportunity to show why the case should remain on the court's docket, any due process violation would be cured at that point, or rendered harmless error, which does not provide grounds for reversal on appeal.

THE RELEVANT SECTION OF THE OPINION IS REPRODUCED BELOW, FOLLOWED BY THE CASE CITE

Dismissal for Want of Prosecution

Appellants argue in their second point of error that the trial court erred in dismissing their suit forwant of prosecution and request that the trial court’s dismissal be reversed.

The trial court signed an order on July 21, 2004, dismissing appellants’ suit for want of prosecution because no final arbitration hearing had commenced by July 9, 2004, as ordered.

As an initial matter, appellants claim that the trial court’s order threatening dismissal unless arbitration was commenced by July9, 2004 was not a notice of trial or “dispositive” setting and that the court could not dismiss until givingadditional notice of potential dismissal with a hearing on a date certain. Appellants further claim that theywere confused as to precisely what actions had to be taken to avoid dismissal. Finally, appellants claim that they received no notice of the trial court’s order informing them that “unless a final hearing on Plaintiff’sclaims has commenced before the American Arbitration Association on or before July 9, 2004, Plaintiff’sclaims shall be DISMISSED FOR WANT OF PROSECUTION.”

Even assuming that appellants received no notice of the trial court’s intention to dismiss their suit for want of prosecution, we hold that any such error was harmless because appellants were given an opportunity to be heard on their motion to reinstate, filed after the dismissal for want of prosecution. See Franklin v. Sherman Indep. Sch. Dist., 53 S.W.3d 398, 403 (Tex. App.—Dallas 2001, pet. denied).

Appellants filed a “Motion for Reinstatement and/or New Trial,” which contained arguments identical to those presented on appeal. After a full hearing on August 20, 2004, the trial court denied appellants’ motion. If a party receives the same hearing before the trial court that it would have had before the dismissal was signed, no harmful error is committed. Id. at 403.

Jimenez v. Transwestern Property Company, 999 S.W.2d125, 129 (Tex. App.—Houston [14th Dist.] 1999, no pet.), also shows that any error did not harm the appellants. In that case, the appellant was not given notice of the trial court’s intent to dismiss for want of prosecution but was given a hearing on the motion to reinstate. Id. at 129. The court held that the hearing on appellant’s motion to reinstate “satisfied the due process rights applicable to the dismissal of his case.”Id. Therefore, assuming without deciding that the trial court erred in dismissing appellants’ case, we hold thatsuch error was harmless. Id. We overrule appellants’ second point of error.

Conclusion

We affirm the judgment of the trial court.

Chambers vs. O'Quinn (Tex.App.- Houston [1st Dist.] Oct. 1, 2009)(Taft) (opinion on remand from the Texas Supreme Court) (mostly addressing arbitration issues)

165a - DWOP and Motion to Reinstate

Tex. R. Civ. P. 165a DISMISSAL FOR WANT OF PROSECUTION

1. Failure to Appear for Trial or Hearing
2. Non-compliance with Time Standards
3. Reinstatement [Procedure the get case re-instated by Motion to Reinstate]
4. Cumulative Remedies

Other vehicles: Motion to Set Aside Dismissal Order - Motion for New Trial