the Branch Law Firm L.L.P and Turner W. Branch v. W. Shane Osborn ( 2015 )

ACCEPTED
14-14-00892-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
THOMAS C. WRIGHT 9/1/2015 4:53:39 PM
CHRISTOPHER PRINE
wright@wrightclose.com CLERK
Board Certified
Civil Trial Law and Civil Appellate Law
Texas Board of Legal Specialization
FILED IN
14th COURT OF APPEALS
HOUSTON, TEXAS
September 1, 2015
9/1/2015 4:53:39 PM
CHRISTOPHER A. PRINE
Clerk
14th Court of Appeals Via Electronic Submission
Christopher A. Prine, Clerk
301 Fannin, Suite 245
Houston, Texas 77002
Re: The Branch Law Firm L.L.P. and Turner W. Branch v. W. Shane Osborn
Cause No. 14-14-00892-CV
Dear Mr. Prine:
During today’s oral argument, counsel for Appellee Shane Osborn argued
that the twenty-day deadline to file a notice of accelerated appeal is steadfast, and
that extensions do not apply. However, the Texas Supreme Court disagrees. In
Hone v. Hanafin, 104 S.W.3d 884 (Tex. 2003), attached hereto, the Texas Supreme
Court applied TRAP 26.3 to an interlocutory, accelerated appeal. The court noted
that because the petitioners in that case filed their notice of accelerated appeal after
the twenty-day deadline, but within TRAP 26.3’s fifteen-day window for
extension, the court of appeals could have considered the petitioners’ notice of
appeal as an implied motion for extension of time to file the notice. Id. at 886.
Though the Branch Parties do not believe it is necessary for the Court to imply a
motion for extension in this case, I wanted to bring Hone v. Hanafin to the panel’s
attention.
Very truly yours,
/s/Thomas C. Wright
Thomas C. Wright
TCW/trs
WRIGHT & CLOSE, LLP
ONE RIVERWAY, SUITE 2200, HOUSTON, TEXAS 77056  TEL: 713.572.4321  FAX: 713.572.4320
Mr. Christopher Prine
September 1, 2015
Page 2
cc via electronic submission:
Christopher A. Grimm
O’CONOR, MASON & BONE, P.C.
1616 S. Voss, Suite 200
Houston, Texas 77057
cgrimm@ombtxlaw.com
Corey J. Seel
MEHAFFY WEBER, P.C.
One Allen Center
500 Dallas, Suite 1200
Houston, Texas 77002
coreyseel@mehaffyweber.com
Ernest W. Boyd
BUTCH BOYD LAW FIRM
2905 Sackett Street
Houston, Texas 77098
butchboyd@butchboydlawfirm.com
Ronald G. Franklin
Tamara Stiner Toomer
MCGUIRE WOODS LLP
600 Travis Street, Suite 7500
Houston, Texas 77002
rfranklin@mcguirewoods.com
tstinertoomer@mcguirewoods.com
Hone v. Hanafin, 104 S.W.3d 884 (2003)
46 Tex. Sup. Ct. J. 619
104 S.W.3d 884
Supreme Court of Texas.
William J. HONE and Falk & Fish, L.L.P., Petitioners,
v.
Bernard M. HANAFIN, Respondent.
No. 02–0548. | May 1, 2003.
Plaintiffs brought action for fraudulent inducement against defendants. The trial court sustained
defendant’s special appearance. Plaintiffs appealed. The Dallas Court of Appeals dismissed
appeal. Upon grant of review, the Supreme Court held that plaintiffs were not required to
concede that their appeal was untimely to obtain extension of time for appeal
Reversed and remanded.
Attorneys and Law Firms
*885 Mark A. Ticer, Law Office of Mark Ticer, Dallas, for Petitioner.
Gerald C. Conley and Linda Richichi Stahl, Andrews & Kurth, L.L.P., Dallas, for Respondent.
Opinion
PER CURIAM.
In this case, we consider whether Texas Rule of Appellate Procedure 26.3 requires an appellant
to concede that its notice of appeal was untimely in order to satisfy the rule’s
“reasonable-explanation” requirement.1 The court of appeals held that, because Petitioners did
not concede that their appeal was untimely, they did not satisfy Rule 26.3’s requirement and
therefore were not entitled to an implied extension under Verburgt v. Dorner, 959 S.W.2d 615
(Tex.1997). 105 S.W.3d 15. To satisfy Rule 26.3’ s requirements, however, an appellant need
not concede untimeliness. And, under Verburgt, an appellant’s good faith belief that its appeal
was timely is, under the circumstances described below, a reasonable explanation. Because this
issue is dispositive, we do not consider whether Petitioners’ request for findings of fact and
conclusions of law, or their failure to receive notice of the trial court’s order until after the time
for filing their notice of appeal had passed, extended the appellate timetable in this accelerated
appeal. Accordingly, without hearing oral argument, we grant the petition for review, reverse the
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
Hone v. Hanafin, 104 S.W.3d 884 (2003)
46 Tex. Sup. Ct. J. 619
courts of appeals’ judgment, and remand the case to that court for further proceedings.
TEX.R.APP. P. 59.1.
William Hone and Falk & Fish, L.L.P. (Petitioners) sued Bernard Hanafin, and others, for
fraudulent inducement and attorney’s fees. Hanafin answered by special appearance. After a
February 21 hearing, the trial court advised the parties that it would sustain Hanafin’s special
appearance. Ten days later, Petitioners requested findings of fact and conclusions of law. The
trial court signed an order sustaining Hanafin’s special appearance on May 9, and issued
findings of fact and conclusions of law on May 17. Petitioners allege, however, that they did not
receive notice of the trial court’s May 9 order until May 31, when they received a faxed copy
from Hanafin’s counsel. The next day, Petitioners filed their notice of appeal, challenging the
trial court’s interlocutory order granting Hanafin’s special appearance. Hanafin challenged the
court of appeals’ jurisdiction to consider the appeal, contending that, because Petitioners filed
their notice of appeal twenty-two days after the trial court’s May 9 order, they failed to perfect
their appeal timely.
The court of appeals dismissed the appeal. The court recognized that, pursuant to Texas 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 for filing the appeal notice, the party files a notice of
appeal in the trial court and a motion for extension *886 of time in the court of appeals. 105
S.W.3d 15. The court also acknowledged that, under this Court’s decision in Verburgt, a motion
for extension of time is implied when an appellant, acting in good faith, files an appeal notice
within Rule 26.3’ s fifteen-day period permitting an appellant to move to extend the filing
deadline. Id. at 19.
The court of appeals concluded, however, that because Petitioners only provided explanations
“for why their notice of appeal was timely filed,” they failed to “offer any explanation for their
failure to timely file their notice of appeal.” Id. at 20 (emphasis in original). The court of appeals
held that Petitioners failed to satisfy Rule 26.3’s extension requirements and dismissed their
appeal. Id. at 19. We granted review to determine whether the rule requires an appellant to admit
untimeliness to merit an extension. 46 Tex. Sup.Ct. J. 619.
In an accelerated appeal, such as this, an appellant has twenty days after the trial court signs its
order to file a notice of appeal. TEX.R.APP. P. 26.1(b); see also TEX. CIV. PRAC. &
REM.CODE § 51.014(a)(7) (permitting interlocutory appeal of a district court’s order granting
or denying defendant’s special appearance); TEX.R.APP. P. 28.1 (“An appeal from an
interlocutory order ... will be accelerated.”). Texas Rule of Appellate Procedure 26.3 provides:
The appellate court may extend the time to file the notice of appeal if, within 15 days after the
deadline for filing the notice of appeal, the party:
(a) files in the trial court the notice of appeal; and
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
Hone v. Hanafin, 104 S.W.3d 884 (2003)
46 Tex. Sup. Ct. J. 619
(b) files in the appellate court a motion complying with Rule 10.5(b).
TEX.R.APP. P. 26.3. Rule 10.5(b) requires an appellant to “reasonably explain” its need for an
extension. TEX.R.APP. P. 10.5(b)(1)(C), (b)(2)(A).
Here, Petitioners filed their notice of appeal twenty-two days after the trial court signed its order
sustaining Hanafin’s special appearance. Because Petitioners filed their notice beyond the
twenty-day time limit imposed by appellate Rule 26.1(b), but within the fifteen-day period in
which they could have moved to extend the filing deadline under Rule 26.3, the court of appeals
could have considered Petitioners’ notice of appeal as an implied motion for extension of time to
file a notice of appeal. See Verburgt, 959 S.W.2d at 617; see also Garcia v. Kastner Farms, Inc.,
774 S.W.2d 668, 669–70 (Tex.1989). Consequently, the question is whether Petitioners’
contention regarding their request for findings of fact and conclusions of law constituted a
reasonable explanation for filing their notice of appeal beyond the twenty-day deadline.
[1]
We first considered the meaning of “reasonably explain” in Meshwert v. Meshwert, 549
S.W.2d 383, 383–84 (Tex.1977) (discussing Texas Rule of Civil Procedure 21c—Rule 26.3’s
predecessor). We held that a reasonable explanation is “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.” Id. at 384. In Garcia v.
Kastner Farms, Inc., we applied the Meshwert standard to all cases in which an appellant fails to
file a notice of appeal timely. 774 S.W.2d at 669–70. We explained that, “[w]hile the definition
of reasonable explanation is settled, the courts of appeals have not applied the definition
consistently.” Id. at 669–70 (comparing Heritage Life Ins. Co. v. Heritage Group Holding
Corp., 751 S.W.2d 229 (Tex.App.-Dallas 1988, writ denied) with Home Ins. Co. v. Espinoza,
644 S.W.2d 44 (Tex.App.-Corpus Christi 1982, writ ref’d n.r.e.)). We emphasized that, under
the liberal *887 standard of review applied in these cases, “[a]ny conduct short of deliberate or
intentional noncompliance qualifies as inadvertence, mistake or mischance....” Id. at 670.
Here, the court of appeals rejected Petitioners’ contention that their request for findings of facts
and conclusion of law extended the appellate timetables.2 105 S.W.3d 15. Having disagreed with
Petitioners’ legal justification for filing their notice of appeal twenty-two days after the trial
court’s order, the court of appeals concluded that because Petitioners did not concede their
failure to timely file their notice of appeal, they were not entitled to an extension under Rule 26.3
The court of appeals did not, however, hold that Petitioners’ late filing resulted from their
intentional or deliberate noncompliance with the rule.
In National Union Fire Insurance Co. v. Ninth Court of Appeals, this Court implicitly rejected
any requirement that an appellant admit its mistake in order to provide a reasonable explanation
for its untimely filing. 864 S.W.2d 58, 60 (Tex.1993). There, the appellee contended that,
because National Union’s motion failed to contain a reasonable explanation for its late filing,
National Union could not assert confusion about the law as a justification for not complying
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Hone v. Hanafin, 104 S.W.3d 884 (2003)
46 Tex. Sup. Ct. J. 619
with the rules. Id. at n. 5. In disapproving that approach, we stated:
[W]e are unwilling to hold that a party confused about the law is prohibited
from having such confusion serve as a reasonable explanation unless through a
fleeting lucid moment or jurisprudential epiphany, the party suddenly realizes
its mistake or confusion. Such a requirement would nearly eliminate “mistake”
from those excuses which this court has repeatedly held suffice as reasonable
explanation.
Id. Our reasoning in National Union applies equally in this case.
[2] [3]
A court of appeals cannot require appellants to admit that their filings were untimely if they
offer a plausible good faith justification for filing their notice of appeal when they did. See id. at
59–60; see also Verburgt, 959 S.W.2d at 616–17. Absent a finding that an appellant’s conduct
was deliberate or intentional, the court of appeals should ordinarily accept the appellant’s
explanations as reasonable. Garcia, 774 S.W.2d at 670.
Courts and scholars disagree about whether filing a request for findings of fact and conclusions
of law extends the deadline for perfecting an appeal when the appeal is accelerated. Compare,
e.g., Hone v. Hanafin 105 S.W.3d at 19 (holding request for findings and conclusions does not
extend appellate deadline in accelerated appeals), with John Hill Cayce, Jr. et al., Civil Appeals
in Texas: Practicing Under the New Rules of Appellate Procedure, *888 49 BAYLOR L.REV.
867, 880 (1997) (stating request for findings and conclusions “should extend the time to perfect
[an accelerated] appeal to ninety days”). The rule does not clearly state that such a request does
not extend the time period within which to file a notice of appeal. Cf. TEX.R.APP. P. 28.1
(“Filing a motion for new trial will not extend the time to perfect the appeal.”). Under these
circumstances, we hold that Petitioners could have plausibly assumed that their request for
findings of fact and conclusions of law would extend the time for filing a notice of appeal under
Rule 26.1(a)(4). Hanafin does not address, nor do we, whether the trial court’s findings of fact
and conclusions of law “could properly be considered” by the court of appeals. See TEX.R.APP.
P. 26.1(a)(4).
Based on the liberal standard established by this Court for considering untimely appeals, we
hold that the court of appeals erred by imposing a requirement that Petitioners concede their
appeal was untimely. Accordingly, without hearing oral argument, we reverse the court of
appeals’ judgment and remand the case to that court for further proceedings. TEX.R.APP. P.
59.1.
All Citations
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4
Hone v. Hanafin, 104 S.W.3d 884 (2003)
46 Tex. Sup. Ct. J. 619
104 S.W.3d 884, 46 Tex. Sup. Ct. J. 619
Footnotes
1 To receive an extension under Rule 26.3(b), an appellant must, among other things, file a motion complying with Rule 10.5(b).
TEX.R.APP. P. 26.3(b). Rule 10.5(b) requires all motions for extension of time to file a notice of appeal to set forth “the facts
relied on to reasonably explain the need for an extension.” TEX.R.APP. P. 10.5(b)(1)(C), (b)(2)(A).
2 The court of appeals reasoned that Rule 26.1(a)(4) applies only to final judgments, as opposed to interlocutory orders. 105 S.W.3d
15 (“[T]he notice of appeal must be filed within ninety days after the judgment is signed if any party timely files ... a request for
findings of fact and conclusions of law.”) (emphasis in original) (quoting TEX.R.APP. P. 26.1(a)(4)). Because we do not reach
Petitioners’ second issue, we do not consider whether a request for findings of fact and conclusions of law extends the appellate
timetable in an interlocutory appeal under Rule 26.1(b).
3 The court also rejected Petitioners’ other arguments explaining that their notice of appeal was timely filed because: (i) the appellate
record suggested May 17—the date the trial court entered its findings of fact and conclusions of law—was the date of final
judgment, and (ii) they had twenty days from May 31—the date they first received notice of the trial court’s May 9 order—to file
their notice of appeal. 105 S.W.3d at 20.
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5