in the Interest of K.M.M. and E.J.G., Children ( 2010 )

NO. 07-10-0083-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

APRIL 9, 2010

______________________________

SANTIAGO MONTOYA, APPELLANT

V.

KATRINA CAE MONTOYA, APPELLEE

_________________________________

FROM THE 100TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 10,341; HONORABLE STUART MESSER, JUDGE

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

ORDER ON APPELLEE'S MOTION TO DISMISS

            Appellant, Santiago Montoya, filed a notice of appeal challenging the trial court's order terminating his parental rights to his child, E.J.G.  The trial court's order was signed on February 25, 2010, and Appellant's notice of appeal was filed in the trial court on March 22, 2010.

            On April 6, 2010, Katrina Cae Montoya filed Appellee's Motion to Dismiss Appeal alleging Appellant's notice of appeal was untimely filed.  Appellant filed a response disagreeing.  We overrule Appellee's Motion to Dismiss Appeal for the following reasons.

            A timely notice of appeal is essential to invoke this Court's jurisdiction.   See In re A.L.B., 56 S.W.3d 651, 652 (Tex.App.--Waco 2003, no pet.).  A notice of appeal from a trial court's termination of parental rights order is accelerated making the notice of appeal due within twenty days after the order is signed.  See Tex. Fam. Code Ann §§ 109.002 and 263.405(i) (Vernon 2009).  See also Tex. R. App. P. 26.1(b).  The filing of a motion for new trial, a post-judgment motion, or a request for findings of fact and conclusions of law will not extend the time to perfect an accelerated appeal.  See Tex. R. App. P. 28.1(b). See also In re K.A.F., 160 S.W.3d 923, 925-27 (Tex. 2005).  However, Rule 26.3 of the Texas Rules of Appellate Procedure provides a fifteen day extension period in which to file the notice of appeal if the notice is filed in the trial court during that period and a motion for extension of time in compliance with Rule 10.5(b) of the Texas Rules of Appellate Procedure is filed in this Court.

            The motion for extension of time is necessarily implied when an appellant acts in good faith.  See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex.1997).  However, it is still necessary for an appellant to provide a reasonable explanation for failing to timely file the notice of appeal.  Jones v. City of Houston, 976 S.W.2d 676, 677 (Tex. 1997).  A reasonable explanation includes, but is not limited to "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" even if that conduct can also be characterized as professional negligence.  See Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 669-70 (Tex. 1989) citing Meshwert v. Meshwert, 549 S.W.2d 383, 384 (Tex. 1977).  See also Hone v. Harafin, 104 S.W.3d 884, 886-87 (Tex. 2003) (reaffirming liberal standard for reviewing a reasonable explanation and noting that "any conduct short of deliberate or intentional noncompliance qualifies as inadvertence, mistake or mischance").

            In the underlying case, the termination order was signed on February 25, 2010, making the notice of appeal due on or before March 17, 2010.  Adding the fifteen day extension provided by Rule 26.3 and implying a motion for extension of time, the last possible date to file the notice of appeal was April 1, 2010. According to the limited documents before us, Appellant filed his notice of appeal on March 22, 2010, well within the extended deadline.

            Appellant filed a motion for extension of time in this Court on April 5, 2010, requesting an extension of time in which to file his notice of appeal.[1]  The envelope reflects a postmark of April 1, 2010, making the motion timely.  See Tex. R. App. P. 9.2(b)(1).  Notwithstanding the motion filed in this Court, Verburgt necessarily implied a motion for extension of time when Appellant filed his notice of appeal in the trial court on March 22, 2010. 959 S.W.2d at 617.  The only remaining requirement for Appellant to satisfy was providing a reasonable explanation for the untimely notice of appeal.  In the motion for extension of time, Appellant postulates that he mistakenly believed the date of signing for the termination order to be February 28, 2010, instead of February 25, 2010,[2] making the deadline March 20, 2010, two days before the notice of appeal was actually filed in the trial court. 

            In applying the fifteen day extension period and accepting Appellant's reasonable explanation in his motion for extension of time for the untimely notice of appeal, we conclude the notice of appeal filed in the trial court on March 22, 2010, invoked this Court's jurisdiction over this appeal.  That said, Appellee's Motion to Dismiss Appeal is overruled and the appeal will proceed in due course according to the timetables for accelerated appeals.

                                                                                    Per Curiam

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[1]The Certificate of Conference reflects that Appellee opposes the motion.

[2]We note that February 28, 2010, fell on a Sunday.