in the Interest of D.M., a Minor Child ( 2021 )

Dismissed and Opinion Filed May 21, 2021
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00185-CV
IN THE INTEREST OF D.M., A MINOR CHILD
On Appeal from the 255th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-19-03631
MEMORANDUM OPINION
Before Chief Justice Burns, Justice Molberg, and Justice Goldstein
Opinion by Justice Molberg
Before the Court is appellants’ motion for extension of time to file their notice
of appeal from the trial court’s December 15, 2020 final decree of divorce. The
notice of appeal was filed March 25, 2021, outside the ninety-day deadline set by
Texas Rule of Appellate Procedure 26.1(a), applicable when, as here, a motion for
new trial is timely filed, but within the fifteen-day extension period provided by
appellate rule 26.3. See TEX. R. APP. P. 26.1(a)(1), 26.3. For the reasons that follow,
we deny the motion and dismiss the appeal.
The timely filing of a notice of appeal is jurisdictional. 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). To obtain an extension for filing a notice of appeal, the party
appealing must offer a reasonable explanation for the delay in filing. See TEX. R.
APP. P. 10.5(b)(1)(C), 26.3(b). The Texas Supreme Court has defined “reasonable
explanation” in the context of extension motions for notices of appeal 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.” Hone v. Hanafin, 104 S.W.3d 884, 886 (Tex.
2003) (per curiam) (quoting Meshwert v. Meshwert, 549 S.W.2d 383, 384 (Tex.
1977)). Examples of explanations courts have found reasonable under appellate rule
26.3 include miscommunication between counsel and client and an unawareness,
misunderstanding, or miscalculation of the applicable appellate rules. See, e.g.,
Nat’l Union Fire Ins. Co. v. Ninth Court of Appeals, 864 S.W.2d 58, 60 (Tex. 1993)
(confusion); Gregorian v. Ewell, 106 S.W.3d 257, 258 (Tex. App.—Fort Worth
2003, no pet.) (improperly calendared deadline); Dimotsis v. Lloyds, 966 S.W.2d
657, 657-58 (Tex. App.—San Antonio 1998, order) (per curiam)
(misunderstanding); Hagaman v. Morgan, 886 S.W.2d 398, 403-04 (Tex. App.—
Dallas 1994, writ denied) (miscommunication).
Appellants do not assert in their extension motion that any
miscommunication, unawareness, or misunderstanding caused the delay. Rather,
they explain that they did not receive notice the divorce decree had been signed until
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January 14,1 when counsel looked at the court’s docket online. Additionally, they
explain that counsel’s firm “was at one-third capacity” from February 15 to February
21 because of snowstorms in Texas; all of the firm’s attorneys “were in a 4-day
bench trial the weeks of February 22 and March 1;” and, counsel “had a time
sensitive emergency . . . in another case . . . which has taken considerable time and
resources.”2
We conclude that these facts do not constitute “a reasonable explanation.”
Although appellants may not have received notice of the decree until January 14,
they were nonetheless able to timely file a motion for new trial. The motion was
filed that same day and was within thirty days of the decree, the same timeframe for
filing a notice of appeal if no deadline-extending post-judgment motion is filed. See
TEX. R. CIV. P. 329b(a) (deadline for filing motion for new trial); TEX. R. APP. P.
26.1 (deadline for filing notice of appeal). Further, although counsel and her firm
may have been preoccupied with other matters between February 15 and March 5,
and counsel may have been busy handling an emergency after that time, appellants
fail to explain how this prevented them from timely filing the notice of appeal. See
Kidd v. Paxton, 1 S.W.3d 309, 311 (Tex. App.—Amarillo 1999, no pet.) (op. on
reh’g) (finding reason that counsel was preoccupied with other duties “deficient”
1
Appellants filed in the trial court a motion to extend post-judgment deadlines based on receiving
notice of the decree more than twenty days after it had been signed, see TEX. R. CIV. P. 306a(4),(5), but
the motion was denied.
2
The motion does not provide a date for when the emergency occurred.
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where counsel failed to explain how those matters interfered with ability to file
notice of appeal). The notice of appeal consists of just two sentences,3 appellants
became aware of the decree on January 14, and the deadline to file was March 15.
Because appellants failed to provide a reasonable explanation for the delay in
filing their notice of appeal, we deny the extension motion and dismiss the appeal.
See TEX. R. APP. P. 42.3(a); Brashear, 302 S.W.3d at 545.
/Ken Molberg//
210185f.p05 KEN MOLBERG
JUSTICE
3
The body of appellants’ notice of appeal recites in its entirety as follows:
COME NOW, Respondents Henry Munoz and Maritza Munoz, and gives this
Notice of Appeal pursuant to Tex. Civ. Prac. Rem. Code 51.012 from this Court’s Final
Judgment dated December 15, 2020.
This Appeal is taken to the Court of Appeals for the Fifth District of Texas at
Dallas.
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF D.M., A On Appeal from the 255th Judicial
MINOR CHILD District Court, Dallas County, Texas
Trial Court Cause No. DF-19-03631.
No. 05-21-00185-CV Opinion delivered by Justice
Molberg, Chief Justice Burns and
Justice Goldstein participating.
In accordance with this Court’s opinion of this date, we DISMISS the appeal.
We ORDER that appellee Norma Ovalle recover her costs, if any, of this
appeal from appellants Henry Munoz and Maritza Munoz.
Judgment entered this 21st day of May 2021.
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