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Careington Int'l Corp. v. First Call Telemedicine, LLC

Court of Appeals Fifth District of Texas at Dallas
Oct 12, 2020
No. 05-20-00841-CV (Tex. App. Oct. 12, 2020)

Opinion

No. 05-20-00841-CV

10-12-2020

CAREINGTON INTERNATIONAL CORPORATION, Appellant v. FIRST CALL TELEMEDICINE, LLC, Appellee


On Appeal from the 471st Judicial District Court Collin County, Texas
Trial Court Cause No. 471-02335-2019

MEMORANDUM OPINION

Before Chief Justice Burns, Justice Whitehill, and Justice Molberg
Opinion by Chief Justice Burns

Before the Court is appellant's motion to extend time to file its notice of accelerated appeal from the trial court's interlocutory order granting appellee's special appearance. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(7); TEX. R. APP. P. 28.1(a). The notice of appeal was filed outside the twenty-day deadline set by Texas Rule of Appellate Procedure 26.1(b) but within the fifteen-day extension period provided by appellate rule 26.3. See TEX. R. APP. P. 26.1(b), 26.3. Appellant explains in the motion it "waited to file its Notice of Appeal to allow the trial court to consider and rule upon . . . its Motion for Reconsideration."

The timely filing of a notice of appeal is jurisdictional. Brashear v. Victoria Gardens of McKinney, L.L.C., 302 S.W.3d 542, 545 (Tex. App.—Dallas 2009, no pet.) (op. on reh'g). To obtain an extension for filing a notice of appeal, the party appealing must offer a reasonable explanation for the delay in filing. See TEX. R. APP. P. 10.5(b)(1)(C), 26.3(b). The Texas Supreme Court has defined a "reasonable explanation" as "[a]ny 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) (per curiam) (quoting Meshwert v. Meshwert, 549 S.W.2d 383, 384 (Tex. 1977)). "Any conduct short of deliberate or intentional noncompliance qualifies as inadvertence, mistake, or mischance[.]" Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 670 (Tex. 1989).

We have previously concluded that intentionally waiting for a trial court to hear a motion for new trial is not a reasonable explanation. See Daniel v. Daniel, 05-17-00469-CV, 2017 WL 2645432, at *1 (Tex. App.—Dallas June 20, 2017, no pet.) (mem. op.); Zhao v. Lone Star Engine Installation Ctr., Inc., No. 05-09-01055-CV, 2009 WL 3177578, at *1, 2 (Tex. App.—Dallas Oct. 6, 2009, pet. denied) (per curiam) (mem. op.).

Accordingly, we deny the extension motion and dismiss the appeal. See TEX. R. APP. P. 42.3(a); Brashear, 302 S.W.3d at 545.

/Robert D. Burns, III/

ROBERT D. BURNS, III

CHIEF JUSTICE 200841F.P05

JUDGMENT

On Appeal from the 471st Judicial District Court, Collin County, Texas
Trial Court Cause No. 471-02335-2019.
Opinion delivered by Chief Justice Burns, Justices Whitehill and Molberg participating.

In accordance with this Court's opinion of this date, we DISMISS the appeal.

We ORDER that appellee First Call Telemedicine, LLC recover its costs, if any, of this appeal from appellant Careington International Corporation. Judgment entered October 12, 2020.


Summaries of

Careington Int'l Corp. v. First Call Telemedicine, LLC

Court of Appeals Fifth District of Texas at Dallas
Oct 12, 2020
No. 05-20-00841-CV (Tex. App. Oct. 12, 2020)
Case details for

Careington Int'l Corp. v. First Call Telemedicine, LLC

Case Details

Full title:CAREINGTON INTERNATIONAL CORPORATION, Appellant v. FIRST CALL…

Court:Court of Appeals Fifth District of Texas at Dallas

Date published: Oct 12, 2020

Citations

No. 05-20-00841-CV (Tex. App. Oct. 12, 2020)