HSBC BK NVv.Kendrick, Jr.

Court of Appeals of Texas, Fifth District, DallasFeb 6, 2007
No. 05-07-00022-CV (Tex. App. Feb. 6, 2007)

No. 05-07-00022-CV.

Opinion Filed February 6, 2007.

On Appeal from the County Court at Law No. 3 Dallas County, Texas Trial Court Cause No. 06-05751-C.




The Court has before it appellant HSBC Bank Nevada, N.A.'s January 9, 2007 motion for extension of time to file notice of appeal, and appellee John J. Kendrick, Jr.'s January 16, 2007 response to appellant's motion for extension and motion to dismiss. We dismiss the appeal for want of jurisdiction.

The trial court signed a final judgment on September 26, 2006, and appellant filed a timely motion for new trial. Thus, the deadline to file a notice of appeal was December 26, 2006. See Tex. R. App. P. 26.1. Appellant filed the notice of appeal on January 9, 2007, fourteen days late. When a party files a notice of appeal within fifteen days of the deadline, Texas Rule of Appellate Procedure 26.3 permits parties to file a motion for extension of time to file their notice of appeal. See Tex. R. App. P. 26.3; see Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). It is an appellant's burden to establish a reasonable explanation for the needed extension. See Jones v. City of Houston, 976 S.W.2d 676, 677 (Tex. 1998); Verburgt, 959 S.W.2d at 617. The phrase "reasonable explanation" has been defined by the Texas Supreme Court as "any plausible statement of circumstance 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) (quoting Meshwert v. Meshwert, 549 S.W.2d 383, 384 (Tex. 1977)).

In its extension motion, appellant explains that it was aware of the September 26, 2006 judgment and the December 26, 2006 deadline to file the notice of appeal. Appellant's explanation as why the notice of appeal was late filed was "Because of the holidays, it took extra time to fully notify the respective general counsel offices and proceed forward with this appeal. It was only January 9, 2007 that final approval could be had to appeal the Judgment of September 20, 2006." Further, appellant's counsel's office was being remodeled. "That too slowed the processing of this appeal and post-judgment process and decision making."

The filing of appellant's notice of appeal was intentionally delayed until a final decision had been made to appeal. Such circumstances do not comprise a reasonable explanation for needing an extension of time for filing notice of appeal. See Gibbs v. Allsup Enters., Inc., 153 S.W.3d 603, 604 (Tex.App.-Amarillo 2004, no pet.) (concluding explanation unreasonable where notice of appeal was intentionally delayed until a final decision had been made as to whether or not to appeal).

Accordingly, we DENY appellant's motion for extension of time to file notice of appeal, and we GRANT appellee's motion to dismiss. We DISMISS this appeal for want of jurisdiction.