COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00466-CV
PEGGY SUE ALLEN APPELLANT
V.
BEVERLY A. HINZE APPELLEE
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FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant Peggy Sue Allen attempts to appeal from a trial court judgment
for damages based on a jury verdict. The judgment was signed on
September 17, 2013, and appellant filed a timely motion for new trial. Although
her notice of appeal was due December 16, 2013, it was filed in the trial court on
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See Tex. R. App. P. 47.4.
December 31, 2013. The same day, appellant filed a motion to extend the time
to file the notice of appeal with this court.
In her motion to extend, under the heading, “Facts Relied on to
Reasonably Explain the Need for an Extension,” appellant states,
Plaintiff/Appellant filed a Motion for New Trial on October[ ]14, 2013.
A hearing on Plaintiff’s Motion for New Trial was heard on December
11, 2013 and was denied on December 17, 2013, which was within
the plenary power of the Court but after the 90 day deadline for filing
a Notice of Appeal. The fifteen day extension for filing a Notice of
Appeal occurs on December 31, 2013.
Appellant also informed this court in response to a letter inquiring about
our jurisdiction that she
set her motion for [new trial] for hearing on the Court’s first available
date, November 20, 2013. Notice of the hearing was provided to
opposing counsel on November 12, 2013. At the time the motion
was set with the court coordinator in the trial court, this was the only
date that was available prior to the time the motion would be
overruled by operation of law on December [2], 2013.
When opposing counsel received notice of the hearing, he
contacted Appellant’s counsel and advised that he had conflicts on
the date scheduled for the hearing and that he had no other
attorneys he could call upon to handle the hearing. Given
Appellee’s counsel’s conflicts, and after much discussion with the
trial court coordinator, it was agreed that the Motion for New Trial
would be heard on December 11, 2013 while the Court retained
plenary power. Rather than ruling on the motion at the time of the
hearing, the trial court took the matter under advisement and signed
the Order Denying the Motion for New Trial on December 17, 2013.
The trial court retained plenary power to amend or set aside the
Judgment until December 31, 2013.
Because the Notice of Appeal was filed more than 90 but less
than 105 days after the date the Judgment was signed and while the
Court still retained plenary power, Appellant filed her Motion to
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Extend the Time to file her Appeal contemporaneously with the filing
of the Notice of Appeal. . . .
In summary, because [of] the difficulty in scheduling the
hearing on Appellant’s Motion for New Trial which resulted in the
order denying said motion being filed more than 90 days after the
Judgment was entered in this case, Appellant has shown good
cause for the late filing of her Appeal, which was filed within the time
the Court retained plenary power.
We may extend the time to file a notice of appeal if, within fifteen days after
the due date, the party files the notice of appeal and a motion reasonably
explaining the need for an extension of time to file the notice of appeal. Tex. R.
App. P. 10.5(b)(1)(C), (2)(A), 26.3. “[A] reasonable explanation is ‘any plausible
statement of circumstances indicating that failure to file within the [specified]
period was not deliberate or intentional, but was the result of inadvertence,
mistake or mischance.’’ Hone v. Hanafin, 104 S.W.3d 884, 886 (Tex. 2003)
(quoting Meshwert v. Meshwert, 549 S.W.2d 383, 384 (Tex. 1977)). Because of
the liberal standard of review in these cases, “[a]ny conduct short of deliberate or
intentional noncompliance qualifies as inadvertence, mistake or mischance.” Id.
at 887. Thus, appellate courts have treated as unreasonable explanations that
indicate an appellant’s conscious or strategic decision to delay filing a notice of
appeal because such explanations did not demonstrate inadvertence, mistake, or
mischance. See, e.g., Morris v. Frost Nat’l Bank, No. 02-11-00058-CV, 2011 WL
1532391, at *1 (Tex. App.––Fort Worth Apr. 21, 2011, no pet.) (mem. op.).
It appears from appellant’s motion that she did not timely file her notice of
appeal because she was waiting on the trial court to hold a hearing and rule on
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her motion for new trial. Nowhere does she indicate that she missed the filing
date inadvertently or because of “mistake or mischance.” Thus, her explanation
suggests that she was aware of the deadline but consciously chose to ignore it.
See, e.g., Zee TV USA, Inc. v. Regency Ctrs., L.P., No. 05-10-01297-CV, 2011
WL 47185, at *1 (Tex. App.––Dallas Jan. 7, 2011, no pet.) (mem. op.); Crossland
v. Crossland, No. 05-06-00228-CV, 2006 WL 925032, at *2 (Tex. App.––Dallas
Apr. 11, 2006, no pet.) (mem. op.) (“Similarly, in this case, appellant has made a
conscious decision to ignore the appellate timetable in favor of the trial court’s
jurisdictional timetable. Courts have repeatedly held as unreasonable and
noncompliant explanations that reflect appellant’s awareness of the deadline for
filing a timely notice of appeal but a decision to ignore it.”).
Because appellant has failed to provide a reasonable explanation of the
need for an extension of time to file her notice of appeal, we deny her motion and
dismiss this appeal for want of jurisdiction. See Tex. R. App. P. 10.5(b)(1)(C),
(2)(A), 26.3, 43.2(f); Zee TV USA, 2011 WL 47185, at *1.
PER CURIAM
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
DELIVERED: February 27, 2014
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