Running the risk of missing the appellate deadline

The appellate clock keeps ticking

Can the 15-day grace period to file notice of appeal after it is due be taken for granted? -- Don’t be too sure. The deadline reprieve is not a matter of right, even if a very good excuse -- not to mention a compelling reason for tardiness -- may not be required under established precedent.   In an opinion released yesterday, the appellate panel keeps up the reader’s suspense for a few paragraphs while discussing the rule and the circumstances in the particular case, but ultimately says it will grant the extension and consider the appeal on the merits. Pasted below is the relevant part of the lengthy opinion, which constitutes yet another installment in a veritable litigation saga, and also offers some of other interesting stuff that makes fodder for separate blawg posts (such as attorney immunity from tort liability for wrongful conduct engaged in in the course of representing a client and dismissal on special exception for failure to state a legally viable cause of action).  

Easton v. Phelan, 
No. 01-10-01067-CV (Tex.App. – Houston [1^st Dist.] May 10, 2012, no pet. h.)

Timeliness of notice of appeal

  

Because the August 30 orders constituted a final judgment and Easton and Whatley filed a timely motion for new trial, the parties had 90 days after the orders were signed to file a notice of appeal.  See Tex. R. App. P. 26.1(a); Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex. 1995) (per curiam).  The 90th day following the date that the orders were signed was Sunday, November 28, 2010.  Because the 90th day was a Sunday, the actual deadline by which the parties should have filed a notice of appeal was the following day, Monday, November 29.  See Tex. R. App. P. 4.1(a).  Since Easton and Whatley filed notice of the present appeal on December 6, the filing was untimely.

Before filing their own motion to dismiss this appeal, Easton and Whatley argued in response to the appellees’ motions to dismiss that, in the event that this court concludes that the notice of appeal was untimely, we should treat their notice of appeal as a motion to extend the time for filing an appeal.  They assert that a court of appeals must exert jurisdiction whenever a notice of appeal is filed within 15 days of the applicable deadline.  See Tex. R. App. P. 26.3.

Notices of appeal filed within the 15 days of the relevant deadline for filing such a notice are treated as implied motions for extension of time to file notice of appeal.  Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997).  However, contrary to Easton and Whatley’s assertion, we are not obliged to grant an implied motion for extension filed within the 15-day grace period.  See Tex. R. App. P. 26.3 (providing that “appellate court may extend the time to file the notice of appeal,” emphasis added).  Whether we grant a motion for extension hinges on whether the appellant provides a reasonable explanation for the untimeliness of the filing, that is, a “plausible good faith justification for filing their notice of appeal when they did.”  Hone v. Hanafin, 104 S.W.3d 884, 887 (Tex. 2003) (per curiam); see also Tex. R. App. P. 10.5(b)(1)(C) & 26.3(b).  “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.”  Hone, 104 S.W.3d at 887.  Thus, under the liberal standard applied in these cases, any reason short of deliberate or intentional noncompliance qualifies as reasonable.  See id. at 886–87.  A misunderstanding of the law and the appellate timetables may be considered a reasonable explanation.  Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 670 (Tex. 1989) (holding that appellant had provided reasonable explanation when he erroneously believed that appeal bond could only be filed after receiving trial court’s findings of fact and conclusions of law); but see Kidd v. Paxton, 1 S.W.3d 309, 310 (Tex. App.—Amarillo 1999, no pet.) (finding counsel’s excuse “implausible and, therefore, unreasonable” when purported misunderstanding of law would not explain why notice of appeal was filed 26 days beyond counsel’s hypothetically correct deadline).  For this court to grant an extension, the appellant is not required to concede that its notice of appeal was untimely filed.  Hone, 104 S.W.3d at 888.

On December 6, 2010, less than 30 days after the trial court denied their motion for new trial, Easton and Whatley filed a second notice of appeal from “the court’s Judgment signed August 30, 2010, and the denial of the Motion for New Trial rendered on November 8, 2010.”  After the Locke Lord attorneys and Thompson Coe attorneys filed motions for involuntary dismissal of the appeal for want of jurisdiction, see Tex. R. App. P. 42.3(a), Easton and Whatley maintained in a written response filed on February 14, 2011 that “[t]he denial of the motion for new trial, by itself, is a stand alone and appealable order which forms the basis of a point of error in the appeal.”  In their opening brief on the merits of this case, they allege that the trial court denied their motion for new trial and that a “timely notice of appeal was given . . . to the denial of the motion for new trial.”  Moreover, in their reply brief, they state, “If this Court should now find that the judgment is final . . . then the appellate timetable began when the district court denied the motion for new trial, and not before, as a timely-filed motion for new trial extends the time period.”

From Easton and Whatley’s filings in this court, it is apparent that they believe that the appellate timetables commence from a denial of a motion for new trial and that filing a notice of appeal within 30 days of such denial is timely.  Their apparent belief is mistaken, because even when the trial court denies a motion for new trial, the appellate timetables commence from the date that the final judgment is signed.  See Tex. R. App. P. 26.1(a).  Nevertheless, a mistake regarding the law is a reasonable explanation for the purpose of deciding whether to grant an implied motion for extension.  See Garcia, 774 S.W.2d at 670; Doe v. Brazoria Cnty. Child Protective Servs., 226 S.W.3d 563, 571 (Tex. App.—Houston [1st Dist.] 2007, no pet.).  Therefore, treating the notice of appeal as an implied motion for extension of time to file a notice of appeal, we grant the motion.  Tex. R. App. P. 26.3. 

SOURCE: HOUSTON COURT OF APPEALS - 01-10-01067-CV – 5/10/12