COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00493-CV
John M. Golden; J. Golden § From the 48th District Court
Properties, Inc.; and Joan Williams
Golden § of Tarrant County (48-252435-11)
v. § January 17, 2013
Energy & Exploration Partners, LLC § Per Curiam
JUDGMENT
This court has considered the record on appeal in this case and holds that
the appeal should be dismissed. It is ordered that the appeal is dismissed for
want of jurisdiction.
SECOND DISTRICT COURT OF APPEALS
PER CURIAM
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00493-CV
JOHN M. GOLDEN; J. GOLDEN APPELLANTS
PROPERTIES, INC.; AND JOAN
WILLIAMS GOLDEN
V.
ENERGY & EXPLORATION APPELLEE
PARTNERS, LLC
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FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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On December 11, 2012, Appellants filed a notice of appeal, attempting to
appeal a final judgment that was signed on August 27, 2012. Appellants had
filed a motion for new trial on September 24, 2012, so the notice of appeal was
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See Tex. R. App. P. 47.4.
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due November 26, 2012. See Tex. R. App. P. 26.1. Along with their notice of
appeal, Appellants filed with this court a motion for extension of time to file their
notice of appeal. Appellants sought a fifteen-day extension from the filing
deadline because ―they were not able to pay a retainer to their attorney until
December 11, 2012.‖
This court may extend the time to file the notice of appeal if, within fifteen
days after the deadline for filing the notice of appeal, the party files the notice of
appeal in the trial court and ―files in the appellate court a motion complying with
Rule 10.5(b).‖ Tex. R. App. P. 26.3. Rule 10.5(b) of the rules of appellate
procedure requires a motion to extend time to state, among other things, ―the
facts relied on to reasonably explain the need for an extension.‖ Tex. R. App. P.
10.5(b)(1)(C). 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)). We apply a liberal
standard of review wherein ―[a]ny conduct short of deliberate or intentional
noncompliance qualifies as inadvertence, mistake or mischance.‖ Id. at 886–87
(quoting Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 670 (Tex. 1989)).
Appellants’ only explanation for their delay in filing their notice of appeal
was that ―they were not able to pay a retainer to their attorney until December 11,
2012.‖ This explanation does not show that the late filing was because of
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―inadvertence, mistake, or mischance,‖ but rather a deliberate or intentional
decision to delay the filing until Appellants were able to raise funds to pay their
attorney. Texas courts have rejected as unreasonable explanations that show a
conscious or strategic decision to wait to file a notice of appeal. See, e.g.,
Amegy Bank of Tex., N.A. v. Titan Servs., LLC, No. 2-09-00420-CV, 2010 WL
87095, at *1–2 (Tex. App.—Fort Worth Jan. 7, 2010, no pet.) (mem. op.)
(―Appellant consciously ignored the deadline in favor of deliberately evaluating
whether to file an appeal.‖); Hidden Door, Inc. v. Bush, No. 05-05-01484-CV,
2006 WL 14276, at *1–2 (Tex. App.—Dallas Jan. 4, 2006, pet. denied) (mem.
op.) (denying motion to extend time because appellant’s explanation that his
counsel had been out of the country ―closely resemble[d] the types of
explanations . . . that reflect appellant’s awareness of the deadline for timely
notice of appeal but a decision to ignore it.‖); Hykonnen v. Baker Hughes Bus.
Support Servs., 93 S.W.3d 562, 564 (Tex. App.—Hous. [14th Dist.] 2002, no
pet.) (―[A]ppellant’s decision to ignore the deadline for filing the notice of appeal
until he could secure representation is not a reasonable explanation for failing to
file the notice of appeal as required by the rules of appellate procedure.‖).
Even applying the liberal standard of review adopted in Hone, we conclude
that Appellants have not offered a reasonable explanation for their failure to
timely file their notice of appeal. See Hone, 104 S.W.3d at 886; Hykonnen, 93
S.W.3d at 564. Accordingly, Appellants’ motion for extension of time to file their
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notice of appeal is denied. Because Appellants’ notice of appeal was not timely
filed, we dismiss the appeal for want of jurisdiction.
PER CURIAM
PANEL: GABRIEL, J.; LIVINGSTON, C.J.; and DAUPHINOT, J.
DELIVERED: January 17, 2013
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