Opinion issued December 22, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-00916-CV
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BARRY C. CONNOR, Appellant
V.
LYNETTE MARIE CONNOR, Appellee
On Appeal from the 311th District Court
Harris County, Texas
Trial Court Case No. 2013-68896
MEMORANDUM OPINION
This is an attempted appeal from a divorce decree signed July 14, 2015. A
motion for new trial was filed on August 13, 2015, extending the time to file the
notice of appeal until October 12, 2015. The notice of appeal was not filed until
October 23, 2015.
An appellate court may extend the time to file the notice of appeal if, within
15 days after the due date, the appellant files the notice of appeal and a motion for
extension in the appellate court. TEX. R. APP. P. 26.3. Appellant did file a notice of
appeal and motion within the 15–day extension period. However, appellant was
required to offer a reasonable explanation for the delay in filing the notice of appeal.
See TEX. R. APP. P. 10.5(b)(1)(C), (b)(2)(A), 26.3(b); Jones v. City of Houston, 976
S.W.2d 676, 677 (Tex. 1998). The Texas Supreme Court defines a “reasonable
explanation” as “[A]ny 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.2d
668, 670 (Tex. 1989).
In his motion for extension, appellant offered as his excuse that he was
“hoping that the trial judge would grant our Motion for New Trial and our Motion
to Reinstate making this appeal unripe.” No other excuse is offered. Appellant
indicates he did not timely file his notice of appeal because he was waiting for the
trial court to rule on his motion for new trial. He does not indicate he missed the
deadline inadvertently or because of “mistake or mischance.”
Intentionally waiting for the trial court to hear or rule on a motion for new
trial is not a reasonable excuse for untimely filing the notice of appeal. See Gibbs v.
Allsup Enter., Inc., 153 S.W.3d 603, 604 (Tex. App.—Amarillo 2004, pet. denied)
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(appeal dismissed where appellant intentionally delayed to review trial court order
overruling motion for new trial before deciding whether to appeal and appellate court
found this intentional delay was not reasonable explanation for needing extension of
time to file notice of appeal); Pasha v. YP Advertising, L.P., No. 01-14-00456-CV,
2014 WL 4116456, at *1–2 (Tex. App.—Houston [1st Dist.] Aug. 21, 2014, no pet.)
(appeal dismissed because appellant’s explanation that they believed there was a
chance trial court would grant their motion for new trial held to be conscious
ignorance of deadline and thus, their failure to file notice of appeal timely was
unreasonable); Allen v. Hinze, No. 02-13-00466-CV, 2014 WL 787867, at *2 (Tex.
App.—Fort Worth Feb. 27, 2014, no pet.) (appeal dismissed because appellant’s
explanation that she was waiting on trial court to hold hearing and rule on motion
for new trial suggests appellant was aware of deadline to file notice of appeal and
consciously chose to ignore it); Zhao v. Lone Star Engine Installation Center, Inc.,
No. 05-09-01055-CV, 2009 WL 3177578, at *2 (Tex. App.—Dallas Oct. 6, 2009,
pet. denied) (motion to extend denied and appeal dismissed where appellant’s
explanation for delay showed appellant was aware of deadline but consciously
ignored it in favor of waiting for ruling on motion for new trial).
Because appellant has not presented a reasonable explanation for untimely
filing his notice of appeal, we deny the motion for extension of time to file the notice
of appeal. Without a timely filed notice of appeal, we have no jurisdiction over the
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appeal. TEX. R. APP. P. 25.1(b). Accordingly, we dismiss the appeal for want of
jurisdiction. Any pending motions are dismissed as moot.
PER CURIAM
Panel consists of Justices Higley, Huddle, and Lloyd.
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