Dalla K. Guerrieri v. Deutsche Bank National Trust Company, as Trustee for Carrington Mortgage Loan Trust, Series 2005-NC3 Asset Backed Pass Through Certificates ( 2021 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-21-00166-CV
DALLA K. GUERRIERI, APPELLANT
V.
DEUTSCHE BANK NATIONAL TRUST COMPANY,
AS TRUSTEE FOR CARRINGTON MORTGAGE LOAN TRUST,
SERIES 2005-NC3 ASSET BACKED PASS THROUGH CERTIFICATES, APPELLEE
On Appeal from the 99th District Court
Lubbock County, Texas
Trial Court No. 2019-535,857, Honorable J. Phillip Hays, Presiding
August 24, 2021
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and DOSS, JJ.
Appellant, Dalla K. Guerrieri, attempts to appeal the trial court’s order granting
summary judgment in favor of Appellee, Deutsche Bank National Trust Company, as
trustee for Carrington Mortgage Loan Trust, Series 2005-NC3 Asset Backed Pass
through Certificates. Now pending before this Court is Guerrieri’s motion to extend the
time to file her notice of appeal. We deny the motion and dismiss the appeal for want of
jurisdiction.
The trial court signed the “Order Granting Plaintiff’s Motion for Summary
Judgment” on June 10, 2021. No motion for new trial or motion to modify the judgment
was filed. Accordingly, Guerrieri’s notice of appeal was due within thirty days after the
order was signed, i.e. by July 12, 2021. See TEX. R. APP. P. 4.1(a), 26.1(a). Guerrieri
filed a notice of appeal on July 20, 2021, followed by the pending motion for an extension
of time. In her motion, Guerrieri states that “[t]he notice of appeal was not timely filed
because Appellant’s counsel did not receive the notice of final judgment until June 15,
2021, even though the judgment was signed June 10, 2021, and Appellant needed time
to evaluate whether filing a notice of appeal was in her best interests.”
Under Rule of Appellate Procedure 26.3, an appellate court may extend the time
to file a notice of appeal if, within fifteen days after the deadline, the appellant files a notice
of appeal and a motion seeking an extension of time. The motion must reasonably explain
the need for the extension. TEX. R. APP. P. 10.5(b), 26.3. A reasonable explanation is
any plausible statement of circumstances indicating that the failure to file the notice of
appeal within the required time 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,
669 (Tex. 1989). Any conduct short of deliberate or intentional noncompliance qualifies
as inadvertence, mistake, or mischance. Id. at 670.
Guerrieri’s first reason for showing her failure to timely file a notice of appeal
suggests her counsel made a mistake in calculating the deadline based on the date
counsel received the final judgment rather than when the judgment was signed. However,
even if we were to calculate the appellate deadline considering counsel’s five-day error,
the notice of appeal is still untimely. See Kidd v. Paxton, 1 S.W.3d 309, 310 (Tex. App.—
2
Amarillo 1999, no pet.) (denying motion for rehearing following dismissal of untimely
appeal despite counsel’s explanation that he miscalculated the perfection deadline; even
if the court extended the appellate deadlines by the requisite time to accommodate
counsel’s error, the notice of appeal was nevertheless untimely).
Guerrieri’s other explanation for her untimely notice of appeal does not
demonstrate her failure was the result of inadvertence, mistake, or mischance. See
Amegy Bank of Tex. v. Titan Servs., LLC, No. 02-09-00420-CV, 2010 Tex. App. LEXIS
149, at *3 (Tex. App.—Fort Worth Jan. 7, 2010, no pet.) (per curiam) (mem. op.). Rather,
her explanation shows that she made a conscious decision to delay filing her notice of
appeal while she evaluated whether to appeal. Her delay in filing was, thus, the result of
a deliberate or intentional decision. See Gibbs v. Allsup Enters., Inc., 153 S.W.3d 603,
604 (Tex. App.—Amarillo 2004, no pet.) (concluding that appellant’s delay in filing a notice
of appeal until after a final decision to appeal had been made was an intentional act).
We, thus, find that Guerrieri has not reasonably explained the need for an
extension of time to file her notice of appeal. For this reason, we deny her motion for
extension. See TEX. R. APP. P. 26.3. Because a timely notice of appeal is essential to
invoking our jurisdiction, we have no jurisdiction to consider Guerrieri’s untimely appeal.
See TEX. R. APP. P. 25.1(b), 26.1; Verburgt v. Dorner, 959 S.W.2d 615, 616-17 (Tex.
1997).
Accordingly, we dismiss the purported appeal for want of jurisdiction. See TEX. R.
APP. P. 42.3(a).
Per Curiam
3