Barton Wade v. SABR Mortgage Loan 2008-1 REO Subsidiary-1 LLC

ACCEPTED
04-15-00683-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
11/12/2015 9:57:59 AM
KEITH HOTTLE
CLERK
NO. 04-15-00683-CV
FILED IN
IN THE COURT OF APPEALS 4th COURT OF APPEALS
SAN ANTONIO, TEXAS
FOURTH JUDICIAL DISTRICT OF TEXAS
11/12/2015 9:57:59 AM
SAN ANTONIO, TEXAS
KEITH E. HOTTLE
Clerk
BARTON WADE and MARY WADE,
APPELLANTS,
v.
SABR MORTGAGE LOAN 2008-1 REO SUBSIDIARY-LLC,
APPELLEE.
Appeal from the County Court at Law No. 10
Bexar County, Texas
Trial Court Case No. 2015CV03726
Hon. David J. Rodriguez, presiding
APPELLEE’S RESPONSE TO APPELLANT’S MOTION FOR
EXTENSION TIME TO FILE NOTICE OF APPEAL
TO THE HONORABLE COURT OF APPEALS:
Appellee SABR Mortgage Loan 2008-1 REO Subsidiary-1 LLC files this its
Response to Appellant Barton Wade’s Motion for Extension of Time to File Notice
of Appeal and respectfully shows as follows:
APPELLEE’S RESPONSE TO APPELLANT’S MOTION FOR
EXTENSION OF TIME TO FILE NOTICE OF APPEAL--PAGE 1
I.
Appellant Barton Wade (“Appellant”)1 filed his Notice of Appeal late. As
reflected in the Docketing Statement that Appellant filed, the Trial Court’s
Judgment was signed on September 17, 2015. See Docketing Statement. Pursuant
to Texas Rule of Appellate Procedure 26.1, Appellant’s Notice of Appeal was due
on October 19, 2015. TEX. R. APP. P. 26.1(a); see also TEX. R. APP. 4.1(a)
(extending deadline to next business day when deadline falls on a weekend).
Appellant, however, did not file his Notice of Appeal until November 2, 2015,
which was fourteen days after it was due. See Appellant’s Notice of Appeal. On
the same day that Appellant filed his Notice of Appeal, he also filed a Motion for
Extension of Time to File Notice of Appeal. See Motion for Extension of Time to
File Notice of Appeal. Pursuant to Texas Rule of Appellate Procedure 26.3, an
appellant may file a motion to extend the time to file a notice of appeal up to
fifteen days after the date that the appellant’s notice of appeal was due. TEX. R.
APP. P. 26.3.
But even if a notice of appeal is filed within this fifteen-day grace period, the
appellant must offer a reasonable explanation for failing to file the notice of appeal
in a timely manner. See TEX. R. APP. P. 26.3. 10.5(b)(1)(C); Hone v. Hanafin, 104
1
Even though Mary Wade is identified as an Appellant in the style of Appellant Barton Wade’s
Motion for Extension of Time to File Notice of Appeal in this matter, Mary Wade filed neither a
notice of appeal nor any other documents in connection with this appeal. Therefore, Mary Wade
is not a party to this appeal.
APPELLEE’S RESPONSE TO APPELLANT’S MOTION FOR
EXTENSION OF TIME TO FILE NOTICE OF APPEAL--PAGE 2
S.W.3d 884, 885 n.1 (Tex. 2003). An explanation is reasonable if the failure to
timely file the notice of appeal was “not deliberate or intentional, but was the result
of inadvertence, mistake or mischance.” Id. at 886 (quoting Meshwert v.
Meshwert, 549 S.W.2d 383, 383-84 (Tex. 1977)); see also Dimotsis v. State Farm
Lloyds, 966 S.W.2d 657 (Tex. App.—San Antonio 1998, order).
Explanations that show an appellant’s conscious or strategic decision to wait
to file a notice of appeal do not show inadvertence, mistake, or mischance. See,
e.g., Polk v. Dallas County, No. 05-13-01731-CV, 2014 Tex. App. LEXIS 3760,
2014 WL 1413737, at *1 (Tex. App.—Dallas Mar. 31, 2014, no pet.) (appellant
was aware of deadline for filing his notice of appeal, but consciously ignored the
deadline while making a determination about whether the decision to appeal made
economic sense); Hykonnen v. Baker Hughes Bus. Support Servs., 93 S.W.3d 562,
563-64 (Tex. App.—Houston [14th Dist.], 2002, no pet.) (appellant failed to file
notice of appeal until he found attorney to represent him on appeal at little or no
cost); Weik v. Second Baptist Church of Houston, 988 S.W.2d 437, 439 (Tex.
App.—Houston [1st Dist.] 1999, pet. denied) (appellant did not file notice of
appeal because lawyer told him that if he appealed case while trial court still had
authority to reinstate, appellant would have a difficult time prosecuting claim
because of trial court's displeasure).
APPELLEE’S RESPONSE TO APPELLANT’S MOTION FOR
EXTENSION OF TIME TO FILE NOTICE OF APPEAL--PAGE 3
Appellant’s explanation for the late-filing of his Notice of Appeal falls into
this same category. In his Motion for Extension of Time, he acknowledges that he
knew of the deadline, but goes on to say that he waited to file his Notice of Appeal
because he was not sure if he would have enough time to spend on the appeal. See
Motion for Extension of Time to File Notice of Appeal. He states that his mother’s
health is poor and that his health has been poor, and for those reasons, he waited to
file until he felt that he could spend enough time on the appeal. Id.
Appellant’s explanation does not meet the standard required for an extension
of time under Rule 26.3. Appellant does not state that his or his mother’s health
distracted him or otherwise caused him to miss the filing deadline somehow.
Rather, he states that he “was not certain” that he would be able to devote
sufficient time to the appeal. See Motion for Extension of Time to File Notice of
Appeal. The Fourteenth Court of Appeals considered a similar argument, where
the indigent appellant waited to file a notice of appeal because he had difficulty
finding an attorney who would handle his appeal pro bono. Hykonnen, 93 S.W.3d
at 563-64. The Fourteenth Court found those explanations to be untenable because
the appellant’s decision not to file his notice of appeal on time was nevertheless
deliberate.
Here, like in Hykonnen, Appellant made a conscious decision not to file his
Notice of Appeal when it was due. By definition, a conscious decision is not
APPELLEE’S RESPONSE TO APPELLANT’S MOTION FOR
EXTENSION OF TIME TO FILE NOTICE OF APPEAL--PAGE 4
“inadvertence, mistake, or mischance”. See id; see also Polk, 2014 Tex. App.
LEXIS 3760, 2014 WL 1413737, at *1; Green v. Cypress Fairbanks Med. Ctr.
Hosp., No. 04-01-00434-CV, 2001 Tex. App. LEXIS 8559, 2001 WL 1665106, at
*1 (Tex. App.—San Antonio Dec. 31, 2001, no pet.). To the contrary, Appellant’s
decision not to file his Notice of Appeal by the deadline was “deliberate” and,
therefore, his request for an extension of time to file his Notice of Appeal is
unfounded. See Hone, 104 S.W.3d at 886.
WHEREFORE, PREMISES CONSIDERED, Appellee respectfully requests
the Court deny Appellant’s Motion for Extension of Time to File Notice of Appeal,
dismiss this Appeal for want of jurisdiction, and grant Appellee with all other and
further relief to which it may be entitled.
Respectfully submitted,
By: /s/ Mark D. Cronenwett
MARK D. CRONENWETT
Texas Bar No. 00787303
mcronenwett@mwzmlaw.com
MACKIE WOLF ZIENTZ & MANN, PC
14160 N. Dallas Parkway, Suite 900
Dallas, Texas 75254
(214) 635-2650
(214) 635-2686 (Fax)
ATTORNEYS FOR APPELLEE
APPELLEE’S RESPONSE TO APPELLANT’S MOTION FOR
EXTENSION OF TIME TO FILE NOTICE OF APPEAL--PAGE 5
CERTIFICATE OF SERVICE
I hereby certify that on the 12th day of November, 2015, a true and correct
copy of the foregoing was served via regular U.S. mail and E-Serve to the
Appellants of record listed below:
Barton Wade
Mary Wade
7530 Buckboard
San Antonio, Texas 78227
Bart.Wade@outlook.com
/s/ Mark D. Cronenwett___________
MARK D. CRONENWETT
APPELLEE’S RESPONSE TO APPELLANT’S MOTION FOR
EXTENSION OF TIME TO FILE NOTICE OF APPEAL--PAGE 6