Opinion
No. 13-04-139-CV
Order Delivered and Filed July 22, 2004.
On appeal from the 398th District Court of Hidalgo County, Texas.
Before Justices HINOJOSA, RODRIGUEZ, and CASTILLO.
ORDER
We grant appellant Correo, Inc's motion for rehearing. We withdraw our opinion of April 29, 2004, and substitute this order in its place.
Appellant, Correo, Inc., attempts to perfect a restricted appeal from a default judgment signed on September 9, 2003. Appellant's notice of appeal was due on March 9, 2004, but was not filed until March 17, 2004. That same day, appellant also filed a motion for extension of time to file its notice of appeal. Appellee's opposition to appellant's motion for extension was received and filed in this Court on March 23, 2004.
A notice of restricted appeal must be filed within six months after the judgment is signed. See TEX. R. APP. P. 26.1(c). Rule 26.3 allows an extension fo time to file a notice of appeal if, within fifteen days after the deadline for filing the notice of appeal, the party files the notice of appeal and a motion complying with Rule 10.5. See TEX. R. APP. P. 26.3. Rule 10.5 requires the appellant to "reasonably explain" its need for an extension. See TEX. R. APP. P. 10.5(b)(1)(C), (b)(2)(A). 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)). We apply a liberal standard of review wherein "any conduct short of deliberate or intentional noncompliance qualifies as inadvertence, mistake or mischance." Id. at 886 (quoting Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 670 (Tex. 1989)). Appellant's notice of appeal was not filed timely. See id.
In the instant case, appellant's notice of appeal was not filed within the deadline provided by Rule 26.1(c). See TEX. R. APP. P. 26.1(c). However, appellant filed a motion for extension of time within the fifteen-day grace period provided by Rule 26.3. See TEX. R. APP. P. 26.3. According to appellant's motion for extension, appellant's notice of appeal was untimely because it did not learn of the judgment entered against it until March 16, 2004, and thus its agents were unable to timely file the notice of appeal. Applying the liberal standard of review mandated by Hone, we conclude that appellant has offered a reasonable explanation for its failure to file its notice of appeal timely. See id. at 886.
Accordingly, appellant's motion for extension of time to file its notice of appeal is granted.