Kyle Bratton v. Holt Texas, LTD D/B/A Holt CAT and D/B/A Sitech-Tejas

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-20-00234-CV
Kyle BRATTON,
Appellant
v.
HOLT TEXAS, LTD d/b/a Holt CAT and d/b/a Sitech-Tejas,
Appellee
From the 408th Judicial District Court, Bexar County, Texas
Trial Court No. 2019CI05583
Honorable Norma Gonzales, Judge Presiding
PER CURIAM
Sitting: Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Irene Rios, Justice
Delivered and Filed: October 14, 2020
MOTION GRANTED; DISMISSED FOR WANT OF JURISDICTION
Appellant Kyle Bratton filed a notice of appeal on April 29, 2020, ninety-two days after
the judgment was signed on January 28, 2020. See TEX. R. APP. P. 26.1(a). 1 Appellant did not
file a motion for extension of time with his notice of appeal. See TEX. R. APP. P. 26.3. On August
17, 2020, we ordered Appellant to show cause why his appeal should not be dismissed for want of
jurisdiction. See TEX. R. APP. P. 42.3(a); Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997).
1
Because Appellant timely filed a motion to reconsider, his appeal was due to be perfected by April 27. See TEX. R.
APP. P. 26.1(a).
04-20-00234-CV
In his response, Appellant explained why his notice of appeal was late, and we reinstated the
appellate timetable.
The same day, Appellee filed a reply to Appellant’s response and objected to the validity
of Appellant’s response. Appellee argued that Appellant’s explanation that he was waiting to file
his notice of appeal until after the trial court ruled on his motion for rehearing was not a reasonable
explanation. See TEX. R. APP. P. 10.5(b); Allen v. Hinze, No. 02-13-00466-CV, 2014 WL 787867,
*1–2 (Tex. App.—Fort Worth, Feb. 27, 2014, no pet.) (per curiam) (mem. op.) (quoting Hone v.
Hanafin, 104 S.W.3d 884, 886 (Tex. 2003)). Appellee moved this court to reconsider its decision,
and we requested a response from Appellant.
In his September 21, 2020 response, Appellant argued that his confusion—related to
schedule and rule changes for trial courts since the COVID-19 pandemic began—caused him to
miss the deadline. See, e.g., Twenty-First Emergency Order Regarding the COVID-19 State of
Disaster, Misc. Docket No. 20-9091 (Tex. July 31, 2020). But in his August 27, 2020 response to
our show cause order, Appellant stated he did not file his notice of appeal because “Counsel was
waiting for the hearing and ruling on the Motion for Rehearing because, if granted, an appeal
would not be necessary.” And in his September 21, 2020 response, Appellant again acknowledged
that “Counsel was waiting for the hearing to commence and knowing that a ruling on the Motion
for Rehearing because, if granted, an appeal would not be necessary and would be entirely
premature.”
“An explanation that shows a conscious or strategic decision to wait to file a notice of
appeal—such as waiting on the trial court to rule on a post-judgment motion—is not a reasonable
explanation for an extension under appellate rule 26.3.” In re Marriage of Mendoza, No. 07-19-
00336-CV, 2019 WL 5539625, at *1 (Tex. App.—Amarillo Oct. 25, 2019, no pet.) (mem. op.);
accord Allen v. Hinze, No. 02-13-00466-CV, 2014 WL 787867, at *2 (Tex. App.—Fort Worth
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04-20-00234-CV
Feb. 27, 2014, no pet.) (mem. op.) (concluding the appellant’s explanation was unreasonable
because “her explanation suggest[ed] that she was aware of the deadline but consciously chose to
ignore it”); JJW Dev., LLC v. Strand Sys. Eng’g, Inc., No. 05-10-01359-CV, 2010 WL 4705824,
at *1 (Tex. App.—Dallas Nov. 22, 2010, no pet.) (mem. op.) (concluding that the appellants’
explanation was unreasonable because “appellants explain[ed] in their motion that they did not
timely file their notice of appeal because they were awaiting the trial court’s reconsideration of the
dismissal”); 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.) (mem. op.) (dismissing an appeal
for want of jurisdiction because “Appellant intentionally chose to delay the filing of her notice of
appeal until the trial court disposed of her motion for new trial [and thus her] choice was not a
result of ‘inadvertence, mistake, or mischance’”).
Appellant’s explanation that he decided to wait for the trial court’s decision on his motion
for rehearing before filing his notice of appeal is not a reasonable explanation. See In re Marriage
of Mendoza, 2019 WL 5539625, at *1; JJW Dev., 2010 WL 4705824, at *1. See generally Hone,
104 S.W.3d at 885 (recognizing that Rule 26.3 invokes Rule 10.5(b)’s reasonable explanation
requirement). Thus, Appellant’s notice of appeal was untimely, and we lack jurisdiction in this
appeal. See TEX. R. APP. P. 26.3; Verburgt, 959 S.W.2d at 616.
We grant Appellee’s motion to reconsider, and we dismiss this appeal for want of
jurisdiction.
PER CURIAM
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