Must State Reasonable, Plausible Circumstances for Extension of Time

This one’s not a family law case, but it warrants mention because it is one of the few cases that denies an extension of time to file a notice of appeal. Allen v. Hinze, No. 02-13-00466-CV (Tex. App. – Fort Worth Feb. 27, 2014) (mem. op.) (per curiam).

Extensions of Time

For ordinary (as opposed to accelerated) appeals, if you don’t timely file a motion for new trial or a similar motion, and you don’t timely request Findings of Fact and Conclusions of Law, then you must file a notice of appeal within thirty days of the date the trial court signed the judgment being appealed. If you did file such a motion, or timely request Findings of Fact and Conclusions of Law, then you have ninety days within which to file the notice of appeal.

In either case, if you miss the deadline, you have an additional fifteen days in which to file a motion to extend time to file notice of appeal.

Reasonable, Plausible Explanation

A motion to extend time to file notice of appeal need not show good cause for failing to meet the filing deadline. It must merely include a reasonable explanation expressing the need for the extension of time.

The Fort Worth Court of Appeals, in Allen v. Hinze, explained:

[A] reasonable explanation is “any 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) (quoting Meshwert v. Meshwert, 549 S.W.2d 383, 384 (Tex. 1977)). Because of the liberal standard of review in these cases, “[a]ny conduct short of deliberate or intentional noncompliance qualifies as inadvertence, mistake or mischance.” Id. at 887. Thus, appellate courts have treated as unreasonable explanations that indicate an appellant’s conscious or strategic decision to delay filing a notice of appeal because such explanations did not demonstrate inadvertence, mistake, or mischance. See, e.g., Morris v. Frost Nat’l Bank, No. 02–11–00058–CV, 2011 WL 1532391, at *1 (Tex. App. – Fort Worth Apr. 21, 2011, no pet.) (mem. op.).

In Allen v. Hinze, the appellant stated that she did not timely file her notice of appeals because her counsel was waiting for the trial court to hold a hearing on the appellant’s motion for new trial. The court of appeals considered this an unreasonable explanation:

Nowhere does she indicate that she missed the filing date inadvertently or because of “mistake or mischance.” Thus, her explanation suggests that she was aware of the deadline but consciously chose to ignore it.

Accordingly the court of appeals denied the motion and dismissed the appeal for want of jurisdiction.

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