Real Estate Arbitrage, LLC v. Greg Gutman

DISMISS; and Opinion Filed February 27, 2018.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-01336-CV
REAL ESTATE ARBITRAGE PARTNERS, LLC, Appellant
V.
GREG GUTMAN, Appellee
On Appeal from the 95th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-17-01809
MEMORANDUM OPINION
Before Justices Lang, Fillmore, and Schenck
Opinion by Justice Schenck
Before the Court is appellant’s motion to extend time to file its notice of appeal. The trial
court signed the judgment in this case on August 7, 2017. Appellant timely filed a motion for new
trial, and on November 20, filed both its notice of appeal and motion to extend time to file a notice
of appeal. TEX. R. APP. P. 10.5(b), 26.3. The notice of appeal was filed more than ninety days
after the signing of the judgment, making the appeal turn on the motion for extension. Appellee
responded in opposition to appellant’s motion to extend.
Under rule 10.5(b) a motion to extend time to file the notice of appeal must state, among
other items, “the facts relied on to reasonably explain the need for an extension.” TEX. R. APP. P.
10.5(b)(1)(C). In its motion, appellant offers as its sole explanation for the untimely filing that the
parties were attempting to reach a settlement agreement. In response, appellee argues that appellant
does not show “the late filing was the result of excusable oversight or genuine error.”
The Texas Supreme Court has defined “reasonable explanation” to mean “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.” Garcia v.
Kastner Farms, Inc., 774 S.W.3d 668, 669 (Tex. 1989) (quoting Meshwert v. Meshwert, 549
S.W.2d 383, 384 (Tex. 1977)). Texas courts have rejected as unreasonable those explanations that
show a defendant’s conscious or strategic decision to wait to file a notice of
appeal, reasoning the explanations did not show inadvertence, mistake, or mischance. 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.).
This Court has previously held that failing to comply with a deadline as a result
of settlement negotiations is not a “reasonable explanation” but rather a deliberate and intentional
choice. Inman’s Corp. v. Transamerica Commercial Fin. Corp., 825 S.W.2d 473, 477, 482 (Tex.
App. —Dallas 1991, no writ) (op. and op. on reh’g). Barring reconsideration by the Court sitting
en banc or contrary intervening authority from the supreme court, prior panel decisions remain
binding on all future panels.
Considering the facts upon which appellant relies and this Court’s prior holding, we must
conclude that appellant has failed to provide a reasonable explanation for the delay. We deny
appellant’s motion to extend time to file notice of appeal. Without a timely filed notice of appeal,
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this Court lacks jurisdiction. TEX. R. APP. P. 25.1(b). Accordingly, we dismiss this appeal for lack
of jurisdiction. See TEX. R. APP. P. 42.3(a).
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE
171336F.P05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
REAL ESTATE ARBITRAGE On Appeal from the 95th Judicial District
PARTNERS, LLC, Appellant Court, Dallas County, Texas
Trial Court Cause No. DC-17-01809.
No. 05-17-01336-CV V. Opinion delivered by Justice Schenck,
Justices Lang and Fillmore participating.
GREG GUTMAN, Appellee
In accordance with this Court’s opinion of this date, we DISMISS this appeal.
It is ORDERED that appellee Greg Gutman recover his costs, if any, of this appeal from
appellant Real Estate Arbitrage Partners, LLC.
Judgment entered this 27th day of February, 2018.
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