BLM of Brownwood, Inc. v. Mid-Tex Cellular, Ltd. ( 2011 )

Order filed December 1, 2011

                                                                       In The          

  Eleventh Court of Appeals

                                                                   __________

                                                         No. 11-11-00311-CV

                                                    __________

                          BLM OF BROWNWOOD, INC., Appellant

                                                             V.

                      MID-TEX CELLULAR, LTD. ET AL., Appellees

                                   On Appeal from the 35th District Court

                                                           Brown County, Texas

                                                Trial Court Cause No. CV 1009295

                                                                     O R D E R

            Mid-Tex Cellular, Ltd. has filed in this court a motion to dismiss the appeal for want of jurisdiction based upon the untimeliness of the notice of appeal and the lack of a reasonable explanation.  The documents on file in this court reflect that the trial court entered judgment on July 14, 2011, that BLM of Brownwood, Inc. filed a timely motion for new trial, and that BLM filed a late notice of appeal on October 20, 2011, eight days after the due date.  See Tex. R. App. P. 26.1.  This court received BLM’s motion to extend time to file the notice of appeal on October 26, 2011.  See Tex. R. App. P. 26.3.  In its motion, BLM relied on the following facts to reasonably explain its need for an extension: “Counsel was contacted by appellant’s agent regarding the appeal.  After preliminary discussions, appellant advised counsel he would be retained, but appellant was not able to retain counsel until October 20, 2011 when counsel filed his notice of appeal.”  In response to Mid-Tex’s motion to dismiss, BLM further asserted, “Where, as here, appellants were not advised of the deadline and were only able to retain counsel on October 20, 2011, they cannot be said to have deliberately or intentionally failed to comply even if that conduct could be characterized as professional negligence.”

Tex. R. App. P. 10.5(b) requires that a motion for extension state “the facts relied on to reasonably explain the need for an extension.”  The Texas Supreme Court has held that “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 are to review the explanation liberally, and “[a]ny conduct short of deliberate or intentional noncompliance qualifies as inadvertence, mistake or mischance—even if that conduct can also be characterized as professional negligence.”  Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 670 (Tex. 1989).  Because BLM has asserted that it was not advised of the filing deadline, we cannot conclude that its failure to timely file the notice of appeal was deliberate or intentional.

Accordingly, we grant BLM’s motion for an extension of time to file the notice of appeal and overrule Mid-Tex’s motion to dismiss the appeal.

PER CURIAM

December 1, 2011

Panel consists of:  Wright, C.J.,

McCall, J., and Kalenak, J.