dissenting.
I respectfully dissent.
Tex.R.App.P. 41(a)(2) provides that an extension of time may be granted by an appellate court for late filing of a cost bond if a motion is filed “reasonably explaining” the need for such an extension.
The Supreme Court, in Meshwert v. Meshwert, 549 S.W.2d 383 (Tex.1977), held that “reasonably explaining” means any plausible statement of circumstances indicating that the failure to file within the designated period was “not deliberate or intentional, but was the result of inadvertence, mistake or mischance.” Id. at 384.
Here, the plaintiff/appellant’s explanation for his late filing of the cost bond was that he was forced to delay his decision of whether to appeal because of a corresponding delay in the trial court’s filing of its findings of facts and conclusions of law.
In holding that such an explanation is not “reasonable,” the majority relies on this Court’s decision in Home Insurance Co. v. Espinoza, 644 S.W.2d 44 (Tex.App.—Corpus Christi 1982, writ ref’d n.r.e.). In Espinoza, the attorney claimed that she mistakenly believed that she did not have to file her cost bond if a motion for new trial was pending. This Court held:
The pendency of a motion for new trial does not in any way affect a party’s obligation to proceed with the proper perfection of its appeal.
We hold that appellant’s failure to timely file its cost bond was the result of the attorney’s failure to adequately familiarize herself with the basic rules of appellate procedure. This does not constitute a reasonable explanation. Espinoza, 644 S.W.2d at 45.
The case of Thornton v. Fenelon Funeral Home, 646 S.W.2d 934 (Tex.1983) *447provides an interesting contrast to Espinoza. In Thornton, the issue was whether the plaintiff’s excuse for a late filing of her request for a statement of facts was “reasonable” under Meshwert. The plaintiff asserted that her late filing was due to the fact that a motion for new trial was still pending. The Supreme Court held such an explanation to be “reasonable” because the plaintiff was justified in waiting to request the statement of facts until the trial court overruled the motion for new trial. The Court explained that, had the new trial been granted, the statement of facts would no longer have been required and would have constituted a needless expense. Thornton, 646 S.W.2d at 935.
In light of the Supreme Court’s holding and reasoning in Thornton, I do not believe this Court’s opinion in Espinoza to be sound law. It should be expressly overruled as to whether a pending motion for new trial constitutes a reasonable explanation under Tex.R.App.P. 41(a)(2).
The instant case does not involve a trial court’s failure to act on a motion for new trial; rather, it involves the failure to file findings of fact and conclusions of law within the time limits required for the filing of the cost bond on appeal. In Mesh-wert the court held “that ‘reasonably explaining’ means any plausible statement of circumstances indicating that failure to file within the sixty-day period was not deliberate or intentional, but was the result of inadvertance, mistake or mischance.” Meshwert, 549 S.W.2d at 384. Such is essentially the same test for determining whether a default judgment should be set aside. Craddock v. Sunshine Bus Line, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939).
The issue in Craddock and Meshwert is whether the defaulting party intended to answer or file the bond; if a decision was made not to answer, so as not to defend, or if the decision was one of indifference and the answer was not filed, the judgment will not be set aside. In the instant case, no mistake or inadvertance is involved; appellant’s failure to timely file the bond was a conscious act. He did not file the bond because he had not decided whether grounds for appeal existed in that the trial court had not timely filed its findings of fact and conclusions of law within the 30 days allowed to file the appeal bond. A conscious decision was made not to timely file the bond. However, no decision had been reached as to whether to perfect the appeal. That decision was made within the 15-day grace period. As there was no decision not to appeal, I cannot say the failure to file was intentional or with conscious disregard as envisioned by the rules.
I would hold in the case at bar that the plaintiff Garcia’s explanation is reasonable, i.e., that he was justified in waiting to file his cost bond (i.e. perfect his appeal) until the trial court filed its findings of fact and conclusions of law. Since such findings could easily enlighten a party regarding his decision of whether to bring an appeal, we should not punish a party for its attorney’s commendable professionalism. I would grant Garcia’s Rule 41(a)(2) motion.
SEERDEN, J., joins in this dissenting opinion.