                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-13-00466-CV


PEGGY SUE ALLEN                                                     APPELLANT

                                        V.

BEVERLY A. HINZE                                                      APPELLEE


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          FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY

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                        MEMORANDUM OPINION 1

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      Appellant Peggy Sue Allen attempts to appeal from a trial court judgment

for damages based on a jury verdict.              The judgment was signed on

September 17, 2013, and appellant filed a timely motion for new trial. Although

her notice of appeal was due December 16, 2013, it was filed in the trial court on




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       See Tex. R. App. P. 47.4.
December 31, 2013. The same day, appellant filed a motion to extend the time

to file the notice of appeal with this court.

      In her motion to extend, under the heading, “Facts Relied on to

Reasonably Explain the Need for an Extension,” appellant states,

      Plaintiff/Appellant filed a Motion for New Trial on October[ ]14, 2013.
      A hearing on Plaintiff’s Motion for New Trial was heard on December
      11, 2013 and was denied on December 17, 2013, which was within
      the plenary power of the Court but after the 90 day deadline for filing
      a Notice of Appeal. The fifteen day extension for filing a Notice of
      Appeal occurs on December 31, 2013.

Appellant also informed this court in response to a letter inquiring about

our jurisdiction that she

      set her motion for [new trial] for hearing on the Court’s first available
      date, November 20, 2013. Notice of the hearing was provided to
      opposing counsel on November 12, 2013. At the time the motion
      was set with the court coordinator in the trial court, this was the only
      date that was available prior to the time the motion would be
      overruled by operation of law on December [2], 2013.

             When opposing counsel received notice of the hearing, he
      contacted Appellant’s counsel and advised that he had conflicts on
      the date scheduled for the hearing and that he had no other
      attorneys he could call upon to handle the hearing.            Given
      Appellee’s counsel’s conflicts, and after much discussion with the
      trial court coordinator, it was agreed that the Motion for New Trial
      would be heard on December 11, 2013 while the Court retained
      plenary power. Rather than ruling on the motion at the time of the
      hearing, the trial court took the matter under advisement and signed
      the Order Denying the Motion for New Trial on December 17, 2013.
      The trial court retained plenary power to amend or set aside the
      Judgment until December 31, 2013.

            Because the Notice of Appeal was filed more than 90 but less
      than 105 days after the date the Judgment was signed and while the
      Court still retained plenary power, Appellant filed her Motion to



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      Extend the Time to file her Appeal contemporaneously with the filing
      of the Notice of Appeal. . . .

            In summary, because [of] the difficulty in scheduling the
      hearing on Appellant’s Motion for New Trial which resulted in the
      order denying said motion being filed more than 90 days after the
      Judgment was entered in this case, Appellant has shown good
      cause for the late filing of her Appeal, which was filed within the time
      the Court retained plenary power.

      We may extend the time to file a notice of appeal if, within fifteen days after

the due date, the party files the notice of appeal and a motion reasonably

explaining the need for an extension of time to file the notice of appeal. Tex. R.

App. P. 10.5(b)(1)(C), (2)(A), 26.3. “[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.).

      It appears from appellant’s motion that she did not timely file her notice of

appeal because she was waiting on the trial court to hold a hearing and rule on


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her motion for new trial. 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.

See, e.g., Zee TV USA, Inc. v. Regency Ctrs., L.P., No. 05-10-01297-CV, 2011

WL 47185, at *1 (Tex. App.––Dallas Jan. 7, 2011, no pet.) (mem. op.); Crossland

v. Crossland, No. 05-06-00228-CV, 2006 WL 925032, at *2 (Tex. App.––Dallas

Apr. 11, 2006, no pet.) (mem. op.) (“Similarly, in this case, appellant has made a

conscious decision to ignore the appellate timetable in favor of the trial court’s

jurisdictional timetable.    Courts have repeatedly held as unreasonable and

noncompliant explanations that reflect appellant’s awareness of the deadline for

filing a timely notice of appeal but a decision to ignore it.”).

      Because appellant has failed to provide a reasonable explanation of the

need for an extension of time to file her notice of appeal, we deny her motion and

dismiss this appeal for want of jurisdiction. See Tex. R. App. P. 10.5(b)(1)(C),

(2)(A), 26.3, 43.2(f); Zee TV USA, 2011 WL 47185, at *1.



                                                       PER CURIAM

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

DELIVERED: February 27, 2014




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