Opinion
No. 05-21-00185-CV
04-21-2022
In the INTEREST OF D.M., a Minor Child
Lindsey M. Rames, Nicole Cawood-Anderson, Rames Law Firm, PC, Dallas, for Appellant. Christopher Cantu, Cantu & Cantu Law Offices, PLLC, Dallas, Paul Raymond Clevenger, Law Office of Paul R. Clevenger, Richardson, for Appellee. Norma Ovalle, Pro Se.
Lindsey M. Rames, Nicole Cawood-Anderson, Rames Law Firm, PC, Dallas, for Appellant.
Christopher Cantu, Cantu & Cantu Law Offices, PLLC, Dallas, Paul Raymond Clevenger, Law Office of Paul R. Clevenger, Richardson, for Appellee.
Norma Ovalle, Pro Se.
Vacated, appeal reinstated.
CONCURRING OPINION FROM ORDER REINSTATING APPEAL
Concurring Opinion by Justice Goldstein On the Court's own motion, the majority vacated our opinion and judgment of May 21, 2021 and reinstated this appeal, without explanation. After reviewing the motion to reconsider en banc , the response, and the reply, I reluctantly concur.
The panel dismissed the appeal for lack of jurisdiction after denying appellants’ motion for extension of time to file their notice of appeal. While the motion was filed within the fifteen-day extension period provided by appellate rule 26.3, the panel denied the motion and dismissed the appeal concluding appellants failed to offer a reasonable explanation for the delay in filing.
While the motion for reconsideration provided a basis for a majority of the panel to reconsider its position, under the current state of jurisprudence, the pattern and practice of the legal profession to seek forgiveness rather than permission is one that cannot stand without comment and caution for which I write separately.
This opinion is not solely directed at the lawyers in this case but to the profession at large to draw attention to a disturbing trend.
The requisite notice of appeal is not labor intensive, extensive, or in-depth. In fact, its simplicity is in its brevity. In this case, the notice of appeal was filed with the motion for extension of time and merely provides:
TO THE CLERK OF THE COURT:
COME NOW, Respondents [H.M.] and [M.M.], and gives this Notice of Appeal pursuant to Tex. Civ. Prac. & Rem. Code § 51.012 from this Court's Final Judgment dated December 15, 2020.
This Appeal is taken to the Court of Appeals for the Fifth District of Texas at Dallas.
It is an incredible waste of judicial resources to address the untimeliness of what is essentially a rote, perfunctory notice. The requisites of a notice of appeal are nominal compared to the drafting of a motion for extension of time, which in turn requires this Court to consider a myriad of excuses to determine whether the motion's rationale meets the generous latitude mandated by the Texas Supreme Court. Moreover, if the motion is denied, that denial generates even more filings, excuses, responses, and replies. Practice Tip: if you file a timely motion for new trial, a two-sentence notice of appeal should follow shortly thereafter.
By way of illustration, appellants filed a sixty-one-page motion for en banc reconsideration, the substantive text of which is seventeen pages, to which we received a fifteen-page response and a ten-page reply.
We originally concluded that the facts recited did not constitute a "reasonable explanation." While appellants on subsequent detailed motions use trigger terminology , they fail to provide a reasonable explanation for the delay between the date they became aware of the decree and filed the motion for new trial (January 14) and the deadline to file a two-sentence notice of appeal (March 15). While the record shows a flurry of post-judgment filings after the filing of the motion for new trial, none of these extended the appellate deadlines.
The majority's detailed opinion dismissing this case is longer than the motion seeking the extension.
Appellants assert miscalculation or mis-calendaring due to: 1) "procedural quagmire in the trial court, the delay and contesting of trial court's orders, and the resulting difficulty in confirming post-judgment deadlines, which includes the notice of appeal date;" 2) the uncertainty regarding the trial court's signing of the order and failing to include the date the parties received notice of final judgment "compounded the confusion and miscalculation of trial and appellate deadlines;" and 3) the "procedural history surrounding the final judgment was a complete and utter mess."
We have repeatedly held that delay caused by waiting for the trial court to rule on a post-judgment motion or for the trial court's plenary power to expire is unreasonable as it reflects an awareness of the deadline for filing a notice of appeal but a conscious decision to ignore it. See, e.g., Daoudi v. Klalib , No. 05-21-00145-CV, 2021 WL 1660644, at *1 (Tex. App.—Dallas Apr. 28, 2021, 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) (mem. op.) (per curiam). Appellants’ arguments demonstrate a conscious disregard of the deadline and a deliberate decision to wait on post-judgment rulings.
We are obligated by rule and mandate to reach the merits of each appeal and, wherever possible, not to dispose of matters before us due to procedural irregularities. See St. Johns Missionary Baptist Church v. Flakes , 595 S.W.3d 211, 215 (Tex. 2020) ; see also Verburgt v. Dorner , 959 S.W.2d 615, 616 (Tex. 1997). In a generous reading of Verburgt and its progeny, we must grant additional time unless there is an affirmative indication to deny the relief. A "reasonable explanation" is "any plausible statement of circumstances" indicating the failure 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). In other words, almost any excuse suffices, except an admission that the deadline was disregarded intentionally or deliberately. See Calce v. Dorado Expl., Inc. , 309 S.W.3d 719, 730 (Tex. App.—Dallas 2010, no pet.).
As with most less-than-bright-line tests, undesirable results occur. The assumption that extensions are routinely granted or the expectation that this Court will request a "more thorough explanation which seems to be standard practice in this Court when appellate jurisdiction is in question" has had the unfortunate consequence of promoting numerous, perfunctory filings, based upon the expectation that there will be a second chance to seek forgiveness for not adequately requesting permission, resulting in a two-tier review of a barrage of motions, responses, and replies that does nothing more than add to the burden of an already bogged down judicial system.
A timely notice of appeal is a jurisdictional prerequisite to be heard that is created by rule, not by constitution. Merits-based appeals matter, as does respecting important jurisdictional deadlines.
For the reasons set forth above, I write separately to encourage parties to seek permission in a meaningful way and to avoid asking for forgiveness.
DAVID J. SCHENCK JUSTICE
CONCURRING OPINION FROM THE DENIAL OF MOTION FOR EN BANC RECONSIDERATION Filed April 28, 2022
Appellants moved for en banc reconsideration of the panel's dismissal of their notice of appeal from a final decree of divorce signed on December 15, 2020. The panel originally dismissed the appeal for lack of jurisdiction after denying appellants' motion for extension of time to file their notice of appeal. Despite noting that the motion was filed within the fifteen-day extension period provided by appellate rule 26.3, the panel nevertheless denied the motion and dismissed the appeal concluding appellants failed to offer a reasonable explanation for the delay in filing. I supported the request for en banc reconsideration and wrote separately to address the problem, as I believe the issue presented here implicates important procedural standards governing the potential waiver of the right to appeal. The panel has now withdrawn its earlier decision, mooting appellants' motion for en banc reconsideration in this case. The issue nevertheless remains extant. See A to Z Wholesale Wine & Spirits, LLC v. Spectra Bank , No. 05-21-01149-CV, 2022 WL 1025098 (Tex. App.—Dallas Apr. 6, 2022, no pet. h.) (mem. op.) ; Ali v. Spectra Bank , No. 05-21-01113-CV, 2022 WL 1025101 (Tex. App.—Dallas Apr. 6, 2022, no pet. h.) (mem. op.). In view of the recurring nature of the problem, I believe the release of my opinion, as a concurrence, is necessary to facilitate a resolution of the question in an appropriate case by the en banc court or the Texas Supreme Court.
My understanding is that we are generally obliged by rule and mandate of a superior court to reach the merits and, whenever possible, not to dispose of matters before us due to procedural irregularities. See St. John Missionary Baptist Church v. Flakes , 595 S.W.3d 211, 215 (Tex. 2020) ; Herczeg v. City of Dallas , No. 05-19-01023-CV, 2021 WL 1169396, at *3 (Tex. App.—Dallas Mar. 29, 2021, pet. denied) (mem. op.) (Schenck, J., dissenting); B.C. v. Steak N Shake Operations, Inc. , 613 S.W.3d 338, 345–46 (Tex. App.—Dallas 2020, no pet.) (Schenck, J., concurring from the Court's denial of en banc reconsideration). In view of that mandate, this Court and others are obliged to adopt a humble and generous view towards all who attempt to invoke our jurisdiction and obtain a meaningful decision.
As I understand it, the standard for granting a timely motion to extend time to appeal is a subjective one: whether a party "deliberate[ly] or intention[ally] failed to comply" with the rule, including the provision for extra time to file a notice of appeal. Garcia v. Kastner Farms , 774 S.W.2d 668, 670 (Tex. 1989). Thus, a decision made to pursue an appeal made only after expiration of the original deadline—and after announcing in open court the intent not to appeal—does not amount to waiver. Calce v. Dorado Exploration, Inc. , 309 S.W.3d 719, 730 (Tex. App.—Dallas 2010, no pet.) (applying Garcia ). To the extent other decisions of this Court suggest a standard contrary to Garcia by creating an objective test, I believe we miss the mark. We would also ignore that the extension rule and its "liberal" standard are known to the parties to be that any subjectively "reasonable" explanation will permit an extension.
Notably, Garcia cited with approval a dissent by Justice Guittard from this Court in Sloan v. Passman , 536 S.W.2d 575 (Tex. App.—Dallas 1976, no writ), with Justice Guittard's dissenting opinion reported in 538 S.W.2d 1, in embracing its liberal standard.
One could argue that parsing into our prior caselaw (regardless of whether it complies with Garcia ) to point to past rejections of extensions does not amount to conscious or deliberate conduct unless the record shows that the party was aware of it. Failure to understand the law, even if negligent, is not a basis for denying a motion for additional time. Garcia , 774 S.W.2d at 669. And, even then, we would be pressed to the question of whether such a categorical declaration of intent would be proper under Garcia 's subjective inquiry.
We are told to give effect to any bona fide attempt to invoke the appellate court's jurisdiction. Verburgt v. Dorner , 959 S.W.2d 615, 616 (Tex. 1997). I construe that general directive to require that we grant additional time unless there is an affirmative indication to deny that relief. A default against jurisdiction in this setting, is the opposite effect. A formality in invoking this Court's jurisdiction should be treated as what it is: a formality, not a terminal event. We are not lords of this manor; we are merely the servants. Once a party has made a bona fide attempt to invoke our jurisdiction, or pursue a merits disposition, we are obliged to facilitate that right.
Any "reasonable explanation" for a late filing of a notice of appeal within the fifteen-day extension period should suffice. This would include "any plausible statement" of the circumstances explaining the failure to file timely. Garcia , 774 S.W.2d at 669. Unfamiliarity with caselaw or miscalculation of deadlines, as I understand it, might, at worst, amount to professional negligence, but it is clearly not an intentional or conscious disregard for the filing deadline. Id. On the other hand, subjective awareness of the deadline and conscious disregard of same because there is a fifteen-day window to extend should not suffice.
Here, as in other instances, appellants explained their untimely notice of appeal was due to late awareness of a final judgment, confusion surrounding post-judgment filings, and a miscalculation of the appellate deadline. Because each of these reasons are in fact plausible explanations, it was not necessary for this Court to dismiss appellants' appeal, and, as a result, the initial dismissal of this case was both improper and contrary to controlling precedent. See Verburgt , 959 S.W.2d at 616.
For the reasons set forth herein, I write separately to commend the panel on withdrawing its earlier opinion, to highlight what I perceive to be a continuing problem in this area, and to encourage the Texas Supreme Court to provide further guidance in this regard.