In the Interest of S v. a Minor Child v. the State of Texas

DISMISS and Opinion Filed June 14, 2023
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00324-CV
IN THE INTEREST OF S.V., A MINOR CHILD
On Appeal from the 256th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-04-11968
MEMORANDUM OPINION
Before Justices Pedersen, III, Garcia, and Kennedy
Opinion by Justice Pedersen, III
Appellant appeals from the trial court’s December 28, 2022 judgment in the
underlying suit for enforcement of a child support order. We questioned our
jurisdiction over the appeal as it appeared to be untimely filed. See Brashear v.
Victoria Gardens of McKinney, L.L.C., 302 S.W.3d 542, 545 (Tex. App.—Dallas
2009, no pet.) (op. on reh’g) (timely filing of notice of appeal is jurisdictional).
Because appellant timely filed a motion for new trial, the notice of appeal was due
March 28, 2023 or, with an extension motion, April 12, 2023. See TEX. R. APP. P.
26.1(a), 26.3. Appellant filed a notice of appeal on April 4, 2023.
An appellate court may extend the time for filing the notice of appeal under
rule 26.3 if the party filing the appeal offers a reasonable explanation for the delay
in filing. See TEX. R. APP. P. 10.5(b), 26.3(b). The Texas Supreme Court has defined
a “reasonable explanation” as “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.” Garcia v. Kastner Farms,
Inc., 774 S.W.2d 668, 670 (Tex. 1989) (citation omitted). An explanation that
demonstrates a conscious or strategic decision to wait is not reasonable. See Daoudi
v. Klalib, No. 05-21-00145-CV, 2021 WL 1660644, at *1 (Tex. App.—Dallas Apr.
28, 2021, no pet.) (mem. op.). A decision by a party to delay filing a notice of appeal
until the trial court rules on motion for new trial does not constitute a reasonable
explanation. See id.At our direction, appellant filed an extension motion. Appellant explains in
the motion that he delayed filing the notice of appeal past the due date as he “was
waiting for rulings on his post-judgment motions.” As noted above, a conscious
decision to delay filing a notice of appeal pending a trial court’s ruling on a motion
for new trial does not constitute a reasonable explanation. See id. Accordingly, we
deny the extension motion and dismiss the appeal for want of jurisdiction. See TEX.
R. APP. P. 42.3(a).
/Bill Pedersen, III//
230324f.p05 BILL PEDERSEN, III
JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF S.V., A On Appeal from the 256th Judicial
MINOR CHILD District Court, Dallas County, Texas
Trial Court Cause No. DF-04-11968.
No. 05-23-00324-CV Opinion delivered by Justice
Pedersen, III. Justices Garcia and
Kennedy participating.
In accordance with this Court’s opinion of this date, the appeal is
DISMISSED.
Judgment entered this 14th day of June, 2023.
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