David Gillespie v. A.L. Hernden and Frederick R. Zlotoucha

A.L.

Fourth Court of Appeals
San Antonio, Texas
October 5, 2015

No. 04-15-00405-CV

David GILLESPIE,
Appellant

v.

A.L. HERNDEN and Frederick R. Zlotoucha,
Appellees

From the 408th Judicial District Court, Bexar County, Texas
Trial Court No. 2013-CI-10278
Honorable Cathleen M. Stryker, Judge Presiding

ORDER
On September 15, 2005, we ordered appellant to offer a reasonable explanation for filing
a late notice of appeal. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). “[A]ny
plausible statement of circumstances indicating that failure to file . . . was not deliberate or
intentional, but was the result of inadvert[e]nce, mistake, or mischance, [would] be accepted as a
reasonable explanation.” Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 670 (Tex. 1989); see
also Dimotsis v. State Farm Lloyds, 966 S.W.2d 657, 657 (Tex. App.—San Antonio 1998, no
pet.). Any conduct short of deliberate or intentional noncompliance qualifies as inadvertence,
mistake or mischance, even if that conduct can also be characterized as professional negligence.
Garcia, 774 S.W.2d at 670; Dimotsis, 966 S.W.2d at 657. Appellant timely responded to our
order, stating that his counsel, in light of other deadlines in his law practice, inadvertently failed
to timely file the notice of appeal. The explanation is reasonable. We, therefore, grant the motion
for extension of time to file the notice of appeal and ORDER this appeal retained on the court’s
docket. We further ORDER that appellant’s brief is due on November 4, 2015.

_________________________________
Karen Angelini, Justice
 IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 5th day of October, 2015.

___________________________________
Keith E. Hottle
Clerk of Court