Order issued April 11, 2019




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                               NO. 01-17-00937-CV
                            ———————————
 ANTHONY MCGILL AND AP MCGILL ENTERPRISE, LLC, Appellant
                                         V.
                     GJG PRODUCTIONS, INC., Appellee


                    On Appeal from the 80th District Court
                            Harris County, Texas
                      Trial Court Case No. 2015-38653


                                     ORDER

      After notifying appellants, Anthony McGill and AP McGill Enterprise, LLC,

this court dismissed their appeal against GJG Productions, Inc., because they failed

to provide a reasonable explanation for their untimely notice of appeal.
      The judgment appealed from was signed on September 6, 2017. Appellants

then moved for a new trial. Accordingly, appellants had 90 days to file their notice

of appeal. See TEX. R. APP. P. 26.1(a)(1). Three days after the deadline passed,

appellants filed their notice of appeal but did not include within their notice a

reasonable explanation for why the notice was untimely. See TEX. R. APP. P. 26.1,

26.3; Verburgt v. Dorner, 959 S.W.2d 615, 617–18 (Tex. 1997). Pursuant to Texas

Rule of Appellate Procedure 42.3, this court sent appellants a notice informing

them that their appeal may be dismissed unless they filed within ten days a

“reasonable explanation” for their untimely notice of appeal. Appellants did not

respond, so we dismissed their appeal in a memorandum opinion dated January 15,

2019. McGill v. GJG Prods., Inc., No. 01-17-00937-CV, 2019 WL 190255 (Tex.

App.—Houston [1st Dist.] 2019); see also TEX. R. APP. P. 42.3(c). Appellants have

since filed a timely motion for rehearing, and Appellee has filed a response.

      We are not aware of any rule of appellate procedure that sets forth an

applicable standard for analyzing a motion to reinstate an appeal after involuntary

dismissal. We find guidance, however, from Texas Rule of Civil Procedure

165a(2), which pertains to reinstatement of civil proceedings after dismissal for

want of prosecution. Rule 165a(2) states that a court shall reinstate the case upon a

finding that the failure of the party or his attorney was not intentional or the result




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of conscious indifference but was the result of an accident or mistake or that the

party’s failure was otherwise reasonably explained.

      In their combined motion for rehearing and motion to extend the time to file

its notice of appeal, Appellants’ attorney explains that he miscalculated the date by

which his notice was due because many of his records were displaced and his cases

were rescheduled due to Hurricane Harvey. He further notes that he was unaware

that this court sent him notice requesting his reasonable explanation for the

untimely notice of appeal. Appellee responded, noting that McGill’s failure to

timely file his notice of appeal was part of a pattern that stretched back to the start

of this case: McGill’s failure to respond to GJG’s demand letter before trial, failure

to comply with the temporary restraining order, failure to file an answer until GJG

moved for default, responding to requests for disclosure fifteen months after they

were due, waiting until after briefing deadlines had passed before asking this court

for extensions, and filing his appellant’s brief after this court’s extended deadline

without asking for another extension. Appellee also cites Kidd v. Paxton, 1 S.W.3d

309 (Tex. App.—Amarillo 1999, no pet.), in which the court found a movant’s

purported   “reasonable      explanation”   to   be   “implausible   and,   therefore,

unreasonable.” Id. at 310.

      Although Appellants’ attorney’s explanation for why he filed the notice of

appeal late and why he failed to respond to this court’s notice is less than robust,


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we find, in the interest of justice, that these failures were not the result of conscious

indifference, but of mistake.

                                      Conclusion

      We grant Appellants’ motion for rehearing and motion to extend, withdraw

our opinion and judgment of January 15, 2019, and reinstate the appeal on the

court’s docket.



                                               Richard Hightower
                                               Justice

Panel consists of Justices Lloyd, Kelly, and Hightower.




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