Dismiss and Opinion Filed March 31, 2014
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-01731-CV
JAMES POLK, Appellant
V.
DALLAS COUNTY, TEXAS, Appellee
On Appeal from the 134th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-10-03558
MEMORANDUM OPINION
Before Chief Justice Wright, and Justices Lang-Miers and Brown
Opinion by Chief Justice Wright
Before the Court is appellant’s March 6, 2014 opposed motion to extend time to file
notice of appeal. Because we conclude appellant did not provide a reasonable explanation for
the need for an extension, we deny appellant’s motion and dismiss this appeal for lack of
jurisdiction.
The trial court signed the judgment in this case on August 5, 2013. Appellant timely filed
a motion to reconsider on August 19, 2013. Thus, appellant’s notice of appeal was due on
November 4, 2013, ninety days after the judgment was signed. TEX. R. APP. P. 26.1(a).
Appellant’s notice of appeal was filed on November 18, 2013, within the fifteen-day period
provided by rule 26.3. 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. In response, appellant filed a motion explaining he did not file his notice of
appeal within the ninety day deadline because he “undertook to determine whether appellant
should appeal . . . and whether the decision to appeal made economic sense for appellant.”
Appellee did not file a response to the motion.
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. Garcia v.
Kastner Farms, Inc., 774 S.W.3d 668, 669 (Tex. 1989). The supreme court emphasized that
“any conduct short of deliberate or intentional noncompliance qualifies as inadvertence, mistake,
or mischance.” Id.
Texas courts have rejected as unreasonable explanations that show an appellant’s
conscious or strategic decision to wait to file a notice of appeal, reasoning the explanations do
not show inadvertence, mistake, or mischance. See, e.g., Hykonnen v. Baker Hughes Bus.
Support Serv., 93 S.W.3d 562, 563-64 (Tex. App.—Houston [14th Dist.], 2002, no pet.) (failed to
file notice of appeal until he found attorney to represent him on appeal at little or no cost); Weik
v. Second Baptist Church of Houston, 988 S.W.2d. 437, 439 (Tex. App.—Houston [1st Dist.]
1999, pet. denied). (appellant did not file notice of appeal because lawyer told him that if he
appealed the case while trial court still had authority to reinstate, appellant would have a difficult
time prosecuting his claim because of trial court’s displeasure). And, this Court has likewise
rejected as unreasonable an appellant’s explanation when appellant made a conscious decision to
ignore the appellate timetable in favor of the trial court’s jurisdictional timetable. See Crossland
v. Crossland, No. 05-06099228-CV, 2006 WL 925032 (Tex. App.—Dallas Apr. 11, 2006, no
pet.)(Mem. Op.).
–2–
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 while making a determination about
whether to file an appeal, we conclude appellant has not provided a reasonable explanation for
the need for an extension. We deny appellant’s motion to extend time to file his notice of appeal.
Without a timely filed notice of appeal, this Court lacks jurisdiction. TEX. R. APP. P.
25.1(b). Accordingly, we dismiss this appeal for lack of jurisdiction.
131730F.P05 /Carolyn Wright/
CAROLYN WRIGHT
CHIEF JUSTICE
–3–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JAMES POLK, Appellant On Appeal from the 134th Judicial District
Court, Dallas County, Texas
No. 05-13-01731-CV V. Trial Court Cause No. DC-10-03558.
Opinion delivered by Chief Justice Wright.
DALLAS COUNTY, TEXAS, Appellee Justices Lang-Miers and Brown
participating.
In accordance with this Court’s opinion of this date, this appeal is DISMISSED.
It is ORDERED that appellee DALLAS COUNTY, TEXAS recover its costs of this
appeal from appellant JAMES POLK.
Judgment entered March 31, 2014
/Carolyn Wright/
CAROLYN WRIGHT
CHIEF JUSTICE
–4–