in the Matter of the Estate of Esther Abell Denton ( 2021 )

Order filed October 28, 2021
In The
Eleventh Court of Appeals
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No. 11-21-00194-CV
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IN THE MATTER OF THE ESTATE OF ESTHER ABELL
DENTON, DECEASED
On Appeal from the County Court
Midland County, Texas
Trial Court Cause No. P14779
ORDER
Douglas A. Denton, Appellant, filed a notice of appeal indicating that he
wishes to appeal various rulings by the trial court related to two orders: (1) Order
Granting Motion for Declaratory Judgment, Closing Estate and Discharging
Administrator, which was signed on May 7, 2021, and (2) Order to Pay Attorney’s
Fees and Expenses, which was signed on May 26, 2021. Each of these orders
appears to be an appealable order. Appellant timely filed a motion for
reconsideration in the trial court. See TEX. R. CIV. P. 329b. However, Appellant did
not file his notice of appeal until August 27, 2021.
In his notice of appeal, Appellant states that he wishes to appeal the trial
court’s failure or refusal to rule on (1) Appellant’s motion for reconsideration,
(2) Appellant’s amended motion for reconsideration, (3) Appellant’s objection to the
May 7 order, and (4) Appellant’s objection to the May 26 order. The trial court’s
failure or refusal to rule on these motions and objections does not have an effect on
the timeliness of Appellant’s notice of appeal because, unless specifically authorized
by statute, appeals may be taken only from final judgments. See Tex. A & M Univ.
Sys. v. Koseoglu, 233 S.W.3d 835, 840–41 (Tex. 2007); Lehmann v. Har–Con Corp.,
39 S.W.3d 191, 195 (Tex. 2001). The trial court’s rulings, or lack thereof, on
Appellant’s motions and objections are not independently appealable because they
do not constitute final judgments.
With respect to the trial court’s May 7 order, the notice of appeal was due to
be filed on or before August 5, 2021, ninety days after the date that the trial court
signed the order. See TEX. R. APP. P. 26.1(a). Because Appellant’s notice of appeal
was not filed on or before August 5 or within the fifteen-day period permitted by the
rules for an extension, see TEX. R. APP. P. 26.3, we do not have jurisdiction over
Appellant’s attempted appeal from the May 7 order. See Wilkins v. Methodist Health
Care Sys., 160 S.W.3d 559, 564 (Tex. 2005); Garza v. Hibernia Nat’l Bank, 227
S.W.3d 233, 233–34 (Tex. App.—Houston [1st Dist.] 2007, no pet.); see also
Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (stating that, once the fifteen-
day period for granting a motion for extension of time has passed, a party can no
longer invoke the appellate court’s jurisdiction). We note that we are prohibited
from suspending the rules “to alter the time for perfecting an appeal in a civil case.”
TEX. R. APP. P. 2.
With respect to the trial court’s May 26 order, the notice of appeal was due to
be filed on or before August 24, 2021, ninety days after the date that the trial court
signed the order. See TEX. R. APP. P. 26.1(a). Although Appellant’s notice of appeal
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was not filed on or before August 24, it was filed within the fifteen-day period
permitted by the rules for an extension. See TEX. R. APP. P. 26.3. Therefore, insofar
as it relates to the May 26 order, Appellant’s notice of appeal shall be treated as an
implied motion for extension of time to file the notice of appeal. See Verburgt, 959
S.W.2d at 617. Appellant must, however, provide this court with a reasonable
explanation for the untimeliness of the notice of appeal, i.e., “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) (alteration in original) (quoting
Meshwert v. Meshwert, 549 S.W.2d 383, 384 (Tex. 1977)); see also TEX. R. APP. P.
10.5(b)(1)(C). We note that, absent deliberate or intentional conduct on the part of
the appellant, a court of appeals should ordinarily accept the appellant’s explanations
as reasonable. Hone, 104 S.W.3d at 887. We also note, however, that absent a
reasonable explanation, this appeal must be dismissed for want of jurisdiction.
For the reasons explained above, this appeal may be continued only as to the
trial court’s May 26, 2021 Order to Pay Attorney’s Fees and Expenses and, even so,
only if Appellant provides this court with a reasonable explanation for the
untimeliness of his notice of appeal. Appellant is directed to file in this court a
written explanation on or before November 15, 2021.
It is so ordered.
PER CURIAM
October 28, 2021
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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