Teresa Stephens v. Phyllis Stephens, Eric Blanco, Carolyn O'Dell, Emmett Glenn, Neil McCabe, Wilma Vicedomine, and Don Clark ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-10-197-CV
TERESA STEPHENS APPELLANT
V.
PHYLLIS STEPHENS, ERIC BLANCO, APPELLEES
CAROLYN O’DELL, EMMETT GLENN,
NEIL MCCABE, WILMA VICEDOMINE,
AND DON CLARK
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FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant Teresa Stephens attempts to perfect an appeal from an adverse
judgment signed on March 11, 2010. Appellant’s notice of appeal was due on
June 9, 2010. On that day, Appellant mailed a motion for extension of time to
file her notice of appeal that was filed with this court on June 11, 2010. This
1
See Tex. R. App. P. 47.4.
court granted Appellant’s motion and ordered Appellant to file her notice of
appeal with the trial court no later than June 24, 2010. Appellant filed her
notice of appeal in this court on June 24, 2010. In the interim, on June 21,
2010, Appellees Wilma Vicedomine, Neil McCabe, Don Clark, and Carolyn
O’Dell filed a motion to reconsider our ruling on Appellant’s motion for
extension of time to file notice of appeal. Although more than ten days have
elapsed since Appellees filed their motion to reconsider, Appellant has not filed
a response to Appellees’ motion.
A timely notice of appeal is essential to invoke our appellate jurisdiction.2
If the notice is untimely, then we can take no action other than to dismiss the
appeal.3 However, the deadline for filing a notice of appeal may be extended
if, within fifteen days after the filing deadline, the party files the notice of
appeal and a motion complying with rule 10.5. 4 Rule 10.5 includes the
requirement that Appellant “reasonably explain” her need for an extension.5 A
“reasonable explanation” is “any plausible statement of circumstances
indicating that failure to file within the [specified] period was not deliberate or
2
In re A.L.B., 56 S.W.3d 651, 652 (Tex. App.—Waco 2001, no pet.).
3
Id.
4
See Tex. R. App. P. 26.3.
5
See Tex. R. App. P. 10.5(b)(1)(C), (b)(2)(A).
2
intentional, but was the result of inadvertence, mistake or mischance.” 6 We
apply a liberal standard of review wherein “[a]ny conduct short of deliberate or
intentional noncompliance qualifies as inadvertence, mistake or mischance.” 7
In this case, Appellant’s notice of appeal was not filed within the deadline
provided by rule 26.1(a).8 However, Appellant filed a motion for extension of
time within the fifteen-day grace period provided by rule 26.3 9 and a notice of
appeal by the June 24, 2010 deadline imposed by this court. According to
Appellant’s motion, she needed additional time to file her notice of appeal
because (1) she “had hoped the trial court would set a hearing for [her] Motion
to Void Judgment before the [notice of appeal] deadline,” but the hearing was
never scheduled; and (2) she “is disabled [and] is unable to prepare for an
appeal without the assistance of counsel and is subsequently filing a Motion to
Appoint Counsel for this appeal as she is unable to do on her own.” 10
6
Hone v. Hanafin, 104 S.W.3d 884, 886 (Tex. 2003) (quoting Meshwert
v. Meshwert, 549 S.W.2d 383, 384 (Tex. 1977)).
7
Id. at 887 (quoting Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 670
(Tex. 1989)).
8
See Tex. R. App. P. 26.1(a).
9
See Tex. R. App. P. 26.3.
10
Appellant has not filed any such motion for appointment of counsel.
3
Texas courts have granted motions for extension of time to file a notice
of appeal where the proferred explanation was a misunderstanding of applicable
appellate rules, such as an erroneous calculation of the perfection deadline or
following the time requirements of a repealed rule;11 an improperly calendared
deadline; 12 a miscommunication between counsel and clients;13 and a mistaken
designation of the wrong court of appeals.14
However, Texas courts deem an explanation unreasonable when the
explanation reveals an appellant’s conscious or strategic decision to wait to file
a notice of appeal because the explanation did not show inadvertence, mistake,
or mischance. 15
11
Hone, 104 S.W.3d at 886; Dimotsis v. Lloyds, 966 S.W.2d 657,
657–58 (Tex. App.—San Antonio 1998, no writ); Heritage Life Ins. Co. v.
Heritage Group Holding Corp., 751 S.W.2d 229, 232 (Tex. App.—Dallas 1988,
writ denied) (op. on reh’g).
12
Gregorian v. Ewell, 106 S.W.3d 257, 258 (Tex. App.—Fort Worth
2003, no pet.).
13
Hughes v. Tex. Instruments, Inc., No. 05-99-01443-CV, 1999 WL
805084, at *2 (Tex. App.—Dallas Oct. 11, 1999, no pet.) (not designated for
publication).
14
Garcia, 774 S.W.2d at 670; Birmingham Fire Ins. Co. of Pa. v. Am. Nat.
Fire Ins. Co., 928 S.W.2d 226, 228 (Tex. App.—Texarkana 1996, no writ).
15
See, e.g., Hykonnen v. Baker Hughes Bus. Support Servs., 93 S.W.3d
562, 563–64 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (holding
appellant’s explanation unreasonable when he failed to perfect appeal until he
found attorney to represent him on appeal at little or no cost); Rodman v. State,
4
Specifically, intentionally choosing to delay the filing of a notice of appeal
until the trial court disposes of a motion for new trial does not excuse the
failure to timely file a notice of appeal.16 The point of a deadline is to force the
issue. 17 Should an appellant, cognizant of a deadline, fail to decide whether to
appeal, the deadline thereby decides the issue by default.18
Here, Appellant’s explanation for needing an extension does not indicate
an unawareness of the deadline for filing a notice of appeal or a
misunderstanding of applicable appellate rules. Instead, Appellant’s explanation
reveals that she consciously ignored the deadline while waiting for the trial
47 S.W.3d 545, 548–49 (Tex. App.—Amarillo 2000, no pet.) (op. on reh’g)
(holding explanation unreasonable when appellant decided to appeal to preserve
eligibility for probation in upcoming trials, after expiration of time for filing
notice of appeal, once the State disclosed its intent to indict appellant for other
crimes); Weik v. Second Baptist Church of Houston, 988 S.W.2d 437, 439
(Tex. App.—Houston [1st Dist.] 1999, pet. denied) (holding appellant’s
explanation unreasonable when he delayed appeal because his lawyer told him
that trial court could reinstate case and appellant would have difficult time
prosecuting claim because of trial court’s displeasure with appellant).
16
Green v. Cypress Fairbanks Med. Ctr. Hosp., No. 04-01-00434-CV,
2001 WL 1665106, at *1 (Tex. App.—San Antonio Dec. 31, 2001, no pet.)
(not designated for publication); see also Inman’s Corp. v. Transamerica
Commercial Fin. Corp., 825 S.W.2d 473, 477 (Tex. App.—Dallas 1991, no
writ); Sonfield v. Sonfield, 709 S.W.2d 326, 328 (Tex. App.—Houston [1st
Dist.] 1986, no writ); Splawn v. Zavala, 652 S.W.2d 578, 579 (Tex.
App.—Austin 1983, no writ).
17
Inman’s Corp., 825 S.W.2d at 477.
18
See id.
5
court to rule on her pending motion. And Appellant presents no legitimate
argument as to why she could not timely file a notice of appeal while waiting
for the trial court’s ruling.19
Even applying the liberal standard of review adopted in Hone, we
conclude that Appellant has not offered a reasonable explanation for her failure
to timely file her notice of appeal.20 Accordingly, Appellees’ motion to
reconsider our ruling granting Appellant’s motion for extension of time to file
her notice of appeal is granted. Therefore, we now deny Appellant’s motion for
extension of time to file notice of appeal. Furthermore, because Appellant’s
notice of appeal was not timely filed and Appellant’s explanations for requiring
an extension do not satisfy the requirements of rule 10.5, we dismiss this
appeal for want of jurisdiction.
PER CURIAM
PANEL: GARDNER, J.; LIVINGSTON, C.J.; and MEIER, J.
DELIVERED: August 31, 2010
19
See Splawn, 652 S.W.2d at 579.
20
104 S.W.3d at 886.
6