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Careington International Corporation v. First Call Telemedicine, LLC ( 2020 )


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  • DISMISS and Opinion Filed October 12, 2020
S  In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00841-CV
CAREINGTON INTERNATIONAL CORPORATION, Appellant
V.
FIRST CALL TELEMEDICINE, LLC, Appellee
On Appeal from the 471st Judicial District Court
Collin County, Texas
Trial Court Cause No. 471-02335-2019
MEMORANDUM OPINION
Before Chief Justice Burns, Justice Whitehill, and Justice Molberg
Opinion by Chief Justice Burns
Before the Court is appellant’s motion to extend time to file its notice of
accelerated appeal from the trial court’s interlocutory order granting appellee’s
special appearance. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(7); TEX.
R. APP. P. 28.1(a). The notice of appeal was filed outside the twenty-day deadline
set by Texas Rule of Appellate Procedure 26.1(b) but within the fifteen-day
extension period provided by appellate rule 26.3. See TEX. R. APP. P. 26.1(b), 26.3.
Appellant explains in the motion it “waited to file its Notice of Appeal to allow the
trial court to consider and rule upon . . . its Motion for Reconsideration.”
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 a “reasonable
explanation” as “[a]ny 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)). “Any conduct short of deliberate or intentional noncompliance
qualifies as inadvertence, mistake, or mischance[.]” Garcia v. Kastner Farms, Inc.,
    774 S.W.2d 668
    , 670 (Tex. 1989).
We have previously concluded that intentionally waiting for a trial court to
hear a motion for new trial is not a reasonable explanation. See Daniel v. Daniel,
05-17-00469-CV,
    2017 WL 2645432
    , at *1 (Tex. App.—Dallas June 20, 2017, no
pet.) (mem. op.); Zhao v. Lone Star Engine Installation Ctr., Inc., No. 05-09-01055-
CV,
    2009 WL 3177578
    , at *1, 2 (Tex. App.—Dallas Oct. 6, 2009, pet. denied) (per
curiam) (mem. op.).
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Accordingly, we deny the extension motion and dismiss the appeal. See TEX.
R. APP. P. 42.3(a);
    Brashear, 302 S.W.3d at 545
    .
/Robert D. Burns, III/
ROBERT D. BURNS, III
CHIEF JUSTICE
200841F.P05
–3–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CAREINGTON INTERNATIONAL                    On Appeal from the 471st Judicial
CORPORATION, Appellant                      District Court, Collin County, Texas
Trial Court Cause No. 471-02335-
No. 05-20-00841-CV         V.               2019.
Opinion delivered by Chief Justice
FIRST CALL TELEMEDICINE,                    Burns, Justices Whitehill and
LLC, Appellee                               Molberg participating.
In accordance with this Court’s opinion of this date, we DISMISS the appeal.
We ORDER that appellee First Call Telemedicine, LLC recover its costs, if
any, of this appeal from appellant Careington International Corporation.
Judgment entered October 12, 2020.
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