Brian C. Simcoe v. Thomas Christopher and Catrina Christopher

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-14-00735-CV
Brian C. SIMCOE,
Appellant
v.
Thomas
Thomas CHRISTOPHER and Catrina Christopher,
Appellees
From the 45th Judicial District Court, Bexar County, Texas
Trial Court No. 2012-CI-15519
Honorable Barbara Hanson Nellermoe, Judge Presiding
PER CURIAM
Sitting: Karen Angelini, Justice
Sandee Bryan Marion, Justice
Marialyn Barnard, Justice
Delivered and Filed: November 26, 2014
DISMISSED FOR LACK OF JURISDICTION
The trial court signed a final judgment on July 9, 2014. Appellant filed a timely motion for
new trial on August 7, 2014. Therefore, the notice of appeal was due to be filed on October 7,
2014. See TEX. R. APP. P. 26.1(a). A motion for extension of time to file the notice of appeal was
due on October 22, 2014. See TEX. R. APP. P. 26.3. Appellant filed his notice of appeal on October
21, 2014.
Although appellant filed his notice of appeal within the fifteen-day grace period allowed
by Rule 26.3, he did not file a motion for extension of time. A motion for extension of time is
04-14-00735-CV
necessarily implied when an appellant, acting in good faith, files a notice of appeal beyond the
time allowed by Rule 26.1 but within the fifteen–day grace period provided by Rule 26.3 for filing
a motion for extension of time. See Verburgt v. Doerner, 959 S.W.2d 615, 617 (Tex. 1997)
(construing predecessor to Rule 26). However, the appellant must offer a reasonable explanation
for failing to file the notice of appeal in a timely matter. See id; TEX. R. APP. P. 26.3; 10.5(b)(1)(C).
On November 5, 2014, we ordered appellant to file a response presenting a reasonable
explanation for failing to file the notice of appeal in a timely manner. Appellant filed a response
to our order stating that he reasonably believed there was a chance that the motion for new trial
would be granted, which would render an appeal of the trial court’s judgment unnecessary. The
response further states that appellant delayed filing of the notice of appeal until after the trial court
ruled on his motion for new trial and after considering the financial implications of undertaking an
appeal.
The Texas Supreme Court has defined “reasonable explanation” to mean “any plausible
statement of circumstances indicating that failure to file . . . was not deliberate or intentional, but
was the result of inadvertence, mistake, or mischance.” Garcia v. Kastner Farms, Inc., 774 S.W.2d
668, 670 (Tex. 1989) (internal quotations omitted). “Any conduct short of deliberate or intentional
noncompliance qualifies as inadvertence, mistake, or mischance . . . .” Id. at 670. In other words,
if the decision to delay filing the notice of appeal until after the appropriate deadline was a
deliberate or intentional decision, we may not extend the time for filing a notice of appeal, and we
must dismiss for want of jurisdiction. Gibbs v. Allsup Enterprises, Inc., 153 S.W.3d 603, 604 (Tex.
App.—Amarillo 2004, pet. denied).
Here, because appellant’s decision to delay filing the notice of appeal was deliberate, the
explanation provided by appellant does not constitute a reasonable explanation for an extension of
time to file the notice of appeal. See Zhao v. Lone Star Engine Installation Ctr., No. 05-09-01055-
-2-
04-14-00735-CV
CV, 2009 WL 3177578, at *2 (Tex. App.—Dallas 2009, pet. denied) (concluding appellant’s
decision to delay the filing of her notice of appeal until the trial court disposed of his motion for
new trial was not the result of inadvertence, mistake, or mischance, and thus, dismissing appeal
for lack of jurisdiction). We, therefore, dismiss this appeal for lack of jurisdiction. See id.
PER CURIAM
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