Penn Virginia Oil & Gas GP, LLC and Penn Virginia Oil & Gas L.P. v. Alfredo De La Garza, Individually and as Next Friend for I. D. L. G. and K. D. L. G., Minors, and John Paul Adame, Individually and A/N/F for C.A.A., J.P.A., Jr., and J.N.A.

Order issued December 22, 2015

In The
Court of Appeals
For The
First District of Texas

NO. 01-15-00867-CV

PENN VIRGINIA OIL & GAS GP, LLC AND PENN VIRGINIA OIL & GAS
L.P., Appellants
V.
ALFREDO DE LA GARZA, INDIVIDUALLY AND AS NEXT FRIEND
FOR I. D. L. G. AND K. D. L. G., MINORS, and JOHN PAUL ADAME,
INDIVIDUALLY AND AS NEXT FRIEND FOR C.A.A., J.P.A., JR., AND
J.N.A., Appellees

On Appeal from the 215th District Court
Harris County, Texas
Trial Court Cause No. 2014-42519

ORDER

Appellants, Penn Virginia Oil & Gas GP, L.L.C. and Penn Virginia Oil and

Gas, L.P. (collectively “Penn Virginia”), filed a notice of appeal on October 13,

2015. On October 14, 2015, Penn Virginia filed a motion for extension of time to

file the notice of appeal. Penn Virginia explained that it mistakenly believed the

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deadline was 30 days from the date the trial court signed the order and only later

discovered it was an accelerated appeal with a filing deadline of 20 days from the

date the order was signed. Penn Virginia’s counsel verified the truth of the facts

contained in the motion for extension.

Appellees, Alfredo De La Garza and John Paul Adame both filed responses,

to which Penn Virginia filed a reply. De La Garza and Adame have also filed a

motion to dismiss the appeal.

In the responses to the extension motion and in their motion to dismiss, De

La Garza and Adame contend Penn Virginia’s excuse for untimely filing its notice

of appeal is not reasonable based on Penn Virginia’s counsel’s involvement with

two previous cases: (1) a 2010 case in the Texarkana Court of Appeals that was

dismissed for a late notice of appeal in a similar accelerated appeal from denial of a

motion to compel arbitration and (2) a 2012 case in the Austin Court of Appeals

involving an order denying a motion to compel arbitration in which the notice of

appeal was filed timely.

The Texas Supreme Court has instructed the courts to apply a liberal, yet

reasonable, standard of accepting “any plausible statement of circumstances

indicating that failure to file within the [required] period was not deliberate or

intentional, but was the result of inadvertence, mistake or mischance.” Meshwert

v. Meshwert, 549 S.W.2d 383, 384 (Tex. 1977); see also Garcia v. Kastner Farms,

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Inc., 774 S.W.2d 668, 670 (Tex. 1989) (quoting Meshwert and reiterating what

constitutes a reasonable explanation). In Garcia, the Supreme Court held that a

reasonable explanation may encompass negligence of counsel, professional

negligence, and any conduct short of deliberate or intentional failure to comply.

774 S.W.3d at 670.

The explanation given by Penn Virginia’s counsel—that he mistakenly

thought the deadline was 30 days from the signing of the order denying his motion

to compel arbitration—is a plausible excuse of mistake that constitutes a

reasonable explanation for the delay in filing the notice of appeal. We cannot

conclude that involvement in similar accelerated appeals in 2010 and 2012

necessarily means that Penn Virginia’s counsel could not have made a mistake as

to the filing deadline in this case. Thus, we deny the motion to dismiss as to the

untimeliness of the notice of appeal.

De La Garza and Adame next assert in their motion to dismiss that Penn

Virginia is appealing an unappealable order. In its notice of appeal, Penn Virginia

states that it is appealing (1) the September 11, 2015 order denying the motion to

compel arbitration and (2) the October 12, 2015 order denying the motion to

reconsider the September 11, 2015 order.

An order denying a motion to reconsider an order denying a motion to

compel arbitration is not independently appealable. See, e.g., Digges v. Knowledge

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Alliance, Inc., 176 S.W.3d 463, 464 (Tex. App.—Houston [1st Dist.] 2004, no

pet.). However, Penn Virginia has also appealed the order denying the motion to

compel arbitration, which is appealable. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 51.016 (West 2015) (permitting appeal from judgment or interlocutory order of a

trial under same circumstances an appeal from a federal district court’s order

would be permitted under 9 U.S.C. section 16); 9 U.S.C.A. § 16(a)(1)(C)

(permitting appeal from an order denying an application to compel arbitration).

Because Penn Virginia is appealing the September 11, 2015 order denying its

motion to compel arbitration, which is an appealable order, we have jurisdiction to

consider this appeal. We deny De La Garza and Adame’s motion to dismiss and

we grant Penn Virginia’s motion for extension of time to file the notice of appeal.

It is so ordered.

PER CURIAM

Panel consists of Chief Justice Radack and Justices Massengale and Brown.

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