                               Fourth Court of Appeals
                                      San Antonio, Texas
                                  MEMORANDUM OPINION
                                          No. 04-14-00735-CV

                                           Brian C. SIMCOE,
                                                Appellant

                                            v.
                                          Thomas
                          Thomas CHRISTOPHER and Catrina Christopher,
                                         Appellees

                      From the 45th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2012-CI-15519
                        Honorable Barbara Hanson Nellermoe, Judge Presiding

PER CURIAM

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: November 26, 2014

DISMISSED FOR LACK OF JURISDICTION

           The trial court signed a final judgment on July 9, 2014. Appellant filed a timely motion for

new trial on August 7, 2014. Therefore, the notice of appeal was due to be filed on October 7,

2014. See TEX. R. APP. P. 26.1(a). A motion for extension of time to file the notice of appeal was

due on October 22, 2014. See TEX. R. APP. P. 26.3. Appellant filed his notice of appeal on October

21, 2014.

           Although appellant filed his notice of appeal within the fifteen-day grace period allowed

by Rule 26.3, he did not file a motion for extension of time. A motion for extension of time is
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necessarily implied when an appellant, acting in good faith, files a notice of appeal beyond the

time allowed by Rule 26.1 but within the fifteen–day grace period provided by Rule 26.3 for filing

a motion for extension of time. See Verburgt v. Doerner, 959 S.W.2d 615, 617 (Tex. 1997)

(construing predecessor to Rule 26). However, the appellant must offer a reasonable explanation

for failing to file the notice of appeal in a timely matter. See id; TEX. R. APP. P. 26.3; 10.5(b)(1)(C).

          On November 5, 2014, we ordered appellant to file a response presenting a reasonable

explanation for failing to file the notice of appeal in a timely manner. Appellant filed a response

to our order stating that he reasonably believed there was a chance that the motion for new trial

would be granted, which would render an appeal of the trial court’s judgment unnecessary. The

response further states that appellant delayed filing of the notice of appeal until after the trial court

ruled on his motion for new trial and after considering the financial implications of undertaking an

appeal.

          The Texas Supreme Court has defined “reasonable explanation” to mean “any plausible

statement of circumstances indicating that failure to file . . . was not deliberate or intentional, but

was the result of inadvertence, mistake, or mischance.” Garcia v. Kastner Farms, Inc., 774 S.W.2d

668, 670 (Tex. 1989) (internal quotations omitted). “Any conduct short of deliberate or intentional

noncompliance qualifies as inadvertence, mistake, or mischance . . . .” Id. at 670. In other words,

if the decision to delay filing the notice of appeal until after the appropriate deadline was a

deliberate or intentional decision, we may not extend the time for filing a notice of appeal, and we

must dismiss for want of jurisdiction. Gibbs v. Allsup Enterprises, Inc., 153 S.W.3d 603, 604 (Tex.

App.—Amarillo 2004, pet. denied).

          Here, because appellant’s decision to delay filing the notice of appeal was deliberate, the

explanation provided by appellant does not constitute a reasonable explanation for an extension of

time to file the notice of appeal. See Zhao v. Lone Star Engine Installation Ctr., No. 05-09-01055-
                                                  -2-
                                                                                        04-14-00735-CV


CV, 2009 WL 3177578, at *2 (Tex. App.—Dallas 2009, pet. denied) (concluding appellant’s

decision to delay the filing of her notice of appeal until the trial court disposed of his motion for

new trial was not the result of inadvertence, mistake, or mischance, and thus, dismissing appeal

for lack of jurisdiction). We, therefore, dismiss this appeal for lack of jurisdiction. See id.

                                                       PER CURIAM




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