Opinion
No. 04-13-00742-CV
10-28-2013
PASCUAL MADRIGAL P.L.L.C., Appellant v. COMMERCIAL IT SOLUTIONS INC., Appellee
From the County Court at Law No. 2, Bexar County, Texas
Trial Court No. 381855
Honorable Jason Wolff, Judge Presiding
ORDER
The trial court signed a final judgment on July 12, 2013. Appellant filed a timely motion for new trial on August 8, 2013. Therefore, the notice of appeal was due to be filed on October 10, 2013. See TEX. R. APP. P. 26.1(a). A motion for extension of time to file the notice of appeal was due on October 25, 2013. See TEX. R. APP. P. 26.3. Appellant filed a notice of appeal within the fifteen-day grace period allowed by Rule 26.3, and he timely filed a motion for extension of time. However, when an appellant files a motion to extend time to file a notice of appeal, he must offer a reasonable explanation for failing to file the notice of appeal in a timely manner. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (construing the predecessor to Rule 26); TEX. R. APP. P. 26.3, 10.5(b)(1)(C). [A]ny plausible statement of circumstances indicating that failure to file . . . was not deliberate or intentional, but was the result of inadvertence, mistake, or mischance, [would] be accepted as a reasonable explanation." Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 670 (Tex. 1989); see also Dimotsis v. State Farm Lloyds, 966 S.W.2d 657, 657 (Tex. App.—San Antonio 1998, no pet.). Any conduct short of deliberate or intentional noncompliance qualifies as inadvertence, mistake or mischance, even if that conduct can also be characterized as professional negligence. Garcia, 774 S.W.2d at 670; Dimotsis, 966 S.W.2d at 657.
We find the explanation provided by appellant in the motion to be reasonable. We therefore GRANT the motion for extension of time to file the notice of appeal. In the alternative, appellant had requested that we abate the appeal and remand the case for a hearing on the motion for new trial. Given that we granted the motion to extend time to file the notice of appeal, abatement and remand is unnecessary. The clerk's record, and any reporter's record, is due in this court on or before November 12, 2013.
We order other the clerk of this court to serve a copy of this order on all counsel, the district clerk, and the court reporter, if any. We further order the clerk of this court to forward a copy of the notice of appeal to the district clerk for filing.
______________________
Marialyn Barnard, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 28th day of October, 2013.
______________________
Keith E. Hottle
Clerk of Court