Anthony McGill and AP McGill Enterprise, LLC v. GJG Productions, Inc. ( 2019 )

Order issued April 11, 2019
In The
Court of Appeals
For The
First District of Texas
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NO. 01-17-00937-CV
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ANTHONY MCGILL AND AP MCGILL ENTERPRISE, LLC, Appellant
V.
GJG PRODUCTIONS, INC., Appellee
On Appeal from the 80th District Court
Harris County, Texas
Trial Court Case No. 2015-38653
ORDER
After notifying appellants, Anthony McGill and AP McGill Enterprise, LLC,
this court dismissed their appeal against GJG Productions, Inc., because they failed
to provide a reasonable explanation for their untimely notice of appeal.
The judgment appealed from was signed on September 6, 2017. Appellants
then moved for a new trial. Accordingly, appellants had 90 days to file their notice
of appeal. See TEX. R. APP. P. 26.1(a)(1). Three days after the deadline passed,
appellants filed their notice of appeal but did not include within their notice a
reasonable explanation for why the notice was untimely. See TEX. R. APP. P. 26.1,
26.3; Verburgt v. Dorner, 959 S.W.2d 615, 617–18 (Tex. 1997). Pursuant to Texas
Rule of Appellate Procedure 42.3, this court sent appellants a notice informing
them that their appeal may be dismissed unless they filed within ten days a
“reasonable explanation” for their untimely notice of appeal. Appellants did not
respond, so we dismissed their appeal in a memorandum opinion dated January 15,
2019. McGill v. GJG Prods., Inc., No. 01-17-00937-CV, 2019 WL 190255 (Tex.
App.—Houston [1st Dist.] 2019); see also TEX. R. APP. P. 42.3(c). Appellants have
since filed a timely motion for rehearing, and Appellee has filed a response.
We are not aware of any rule of appellate procedure that sets forth an
applicable standard for analyzing a motion to reinstate an appeal after involuntary
dismissal. We find guidance, however, from Texas Rule of Civil Procedure
165a(2), which pertains to reinstatement of civil proceedings after dismissal for
want of prosecution. Rule 165a(2) states that a court shall reinstate the case upon a
finding that the failure of the party or his attorney was not intentional or the result
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of conscious indifference but was the result of an accident or mistake or that the
party’s failure was otherwise reasonably explained.
In their combined motion for rehearing and motion to extend the time to file
its notice of appeal, Appellants’ attorney explains that he miscalculated the date by
which his notice was due because many of his records were displaced and his cases
were rescheduled due to Hurricane Harvey. He further notes that he was unaware
that this court sent him notice requesting his reasonable explanation for the
untimely notice of appeal. Appellee responded, noting that McGill’s failure to
timely file his notice of appeal was part of a pattern that stretched back to the start
of this case: McGill’s failure to respond to GJG’s demand letter before trial, failure
to comply with the temporary restraining order, failure to file an answer until GJG
moved for default, responding to requests for disclosure fifteen months after they
were due, waiting until after briefing deadlines had passed before asking this court
for extensions, and filing his appellant’s brief after this court’s extended deadline
without asking for another extension. Appellee also cites Kidd v. Paxton, 1 S.W.3d
309 (Tex. App.—Amarillo 1999, no pet.), in which the court found a movant’s
purported “reasonable explanation” to be “implausible and, therefore,
unreasonable.” Id. at 310.
Although Appellants’ attorney’s explanation for why he filed the notice of
appeal late and why he failed to respond to this court’s notice is less than robust,
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we find, in the interest of justice, that these failures were not the result of conscious
indifference, but of mistake.
Conclusion
We grant Appellants’ motion for rehearing and motion to extend, withdraw
our opinion and judgment of January 15, 2019, and reinstate the appeal on the
court’s docket.
Richard Hightower
Justice
Panel consists of Justices Lloyd, Kelly, and Hightower.
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