A.J. Morris v. Frost National Bank and De Lage Landen Financial Services, Inc.

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-11-00058-CV

A.J. MORRIS APPELLANT

V.

FROST NATIONAL BANK AND APPELLEES
DE LAGE LANDEN FINANCIAL
SERVICES, INC.

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FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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Pro se Appellant A.J. Morris attempts to appeal from the trial court’s

agreed judgment signed November 9, 2010. He timely filed a ―Motion for

Reconsideration, Rehearing, Modification, and/or New Trial‖ on December 7,

2010.2 His notice of appeal was therefore due February 7, 2011, but was not

filed until February 14, 2011.3

1
See Tex. R. App. P. 47.4.
2
See Tex. R. Civ. P. 329b(a).
3
See Tex. R. App. P. 26.1(a).
 Because we were concerned that we may have no jurisdiction over this

case based on Appellant’s untimely notice of appeal, we notified Appellant in

writing of our concern and requested that he provide us within ten days a

reasonable explanation for the late filing of the notice of appeal. Appellant’s

response states, ―I was unable to timely file this [the notice of appeal] because I

had no actual notice of the date of the signing of the Agreed Judgment from

either the Court or either of the attorneys involved in this Agreed Judgment.‖

When a party files a notice of appeal late but within fifteen days of the filing

deadline, we imply a motion for extension of time.4 But the party must

―reasonably explain‖ its need for an extension.5 The Texas Supreme Court has

stated that a reasonable explanation is ―any plausible statement of circumstance

indicating that [a timely] failure to file . . . was not deliberate or intentional, but

was the result of inadvertence, mistake, or mischance.‖6 The court has also

clarified that ―under the liberal standard of review applied in these cases, any

conduct short of deliberate or intentional noncompliance qualifies as

inadvertence, mistake or mischance . . . .‖7 But Texas appellate courts have

treated as unreasonable those explanations that indicate an appellant’s

4
See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997); see also Tex.
R. App. P. 10.5(b)(2).
5
Verburgt, 959 S.W.2d at 617; see also Tex. R. App. P. 10.5(b)(2)(A).
6
Hone v. Hanafin, 104 S.W.3d 884, 886 (Tex. 2003).
7
Id. at 886–87 (internal quotations omitted).

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conscious or strategic decision to delay filing a notice of appeal because such

explanations did not demonstrate inadvertence, mistake, or mischance.8

Given that Appellant attached a copy of the agreed judgment to his motion

for new trial filed December 7, 2010, we conclude that his explanation that he

filed his notice of appeal after the February 7, 2011 deadline because he had ―no

actual notice of the date of the signing of the Agreed Judgment from either the

Court or either of the attorneys involved in this Agreed Judgment‖ is not plausible

and therefore not reasonable.9

Accordingly, because Appellant’s notice of appeal was not timely filed and

his explanation for requiring an extension does not satisfy rule of appellate

procedure 10.5, we dismiss this appeal for want of jurisdiction.10

PER CURIAM

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DELIVERED: April 21, 2011

8
Stephens v. Stephens, No. 02-10-00197-CV, 2010 WL 3433108, at *2
(Tex. App.—Fort Worth Aug. 31, 2010, no pet.) (citing Hykonnen v. Baker
Hughes Bus. Support Servs., 93 S.W.3d 562, 563–64 (Tex. App.—Houston [14th
Dist.] 2002, no pet.); Rodman v. State, 47 S.W.3d 545, 548–49 (Tex. App.—
Amarillo 2000, no pet.) (op. on reh’g); Weik v. Second Baptist Church of
Houston, 988 S.W.2d 437, 439 (Tex. App.—Houston [1st Dist.] 1999, pet.
denied)).
9
See id.
10
See Tex. R. App. P. 42.3(a), 43.2(f).

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