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Gibbs v. Allsup Enterprises

Court of Appeals of Texas, Seventh District, Amarillo
Aug 18, 2004
153 S.W.3d 603 (Tex. App. 2004)

Summary

concluding explanation was unreasonable where notice of appeal was intentionally delayed until a final decision had been made as to whether or not to appeal

Summary of this case from Gomez v. Capitol Cty. Mut.

Opinion

No. 07-04-0315-CV.

August 18, 2004.

From the 64th District Court of Hale County, No. A33080-0310; Robert Kinkaid, Jr., Judge.

Joe A. Izen, Jr., Bellaire, for appellant.

Bill Harriger, Hund Harriger, LLP, Lubbock, for appellee.

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.


OPINION


Kerwin Gibbs appeals from an adverse summary judgment. Determining that he did not reasonably explain the need for an extension of time to file his late-filed notice of appeal, we dismiss for want of jurisdiction.

The 64th District Court of Hale County granted summary judgment in favor of Allsup's Enterprises, Inc., and against Kevin Gibbs. Gibbs filed a motion for new trial which was overruled as a matter of law. He filed his notice of appeal late, but within 15 days after the deadline for filing the notice. See Tex.R.App. P. 26.3. Accompanying the late-filed notice of appeal was a motion to enlarge time for filing of notice of appeal which we deemed to be a motion for extension of time to file the notice of appeal. Pursuant to direction of the court, Gibbs filed further documentation explaining his need for an extension of time. See Verburgt v. Dorner, 959 S.W.2d 615, 617-18 (Tex. 1997).

Further reference to a rule of appellate procedure will be by reference to "TRAP —."

Gibbs' explanation for failing to timely file his notice of appeal is that his attorney was waiting to review the trial court's order overruling his motion for new trial, after which his attorney was to confer with him and a final decision would be made about whether to appeal. The trial court, however, did not enter an order overruling the motion for new trial.

Gibbs does not set out facts as to when he and his attorney made the final decision to appeal. It is apparent from his motion to enlarge time for filing notice and subsequently-filed affidavit from his attorney, however, that once a final decision to appeal was made, the notice of appeal was filed.

A "reasonable explanation" for needing an extension of time to file notice of appeal includes any plausible statement of circumstances indicating that the late filing was not deliberate or intentional, but was the result of inadvertence, mistake, or mischance. See Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 670 (Tex. 1989). If the decision to delay filing notice of appeal until after the appropriate deadline was a deliberate or intentional decision, we may not extend the time for filing a notice of appeal, and we must dismiss for want of jurisdiction. See Garcia, 774 S.W.2d at 670; Meshwert v. Meshwert, 549 S.W.2d 383, 384 (Tex. 1977); Kidd v. Paxton, 1 S.W.3d 309, 310 (Tex.App.-Amarillo 1999, pet. denied).

Filing of Gibbs' notice of appeal was intentionally delayed until a final decision had been made to appeal. Such circumstances do not comprise a reasonable explanation for needing an extension of time for filing notice of appeal. See Garcia, 774 S.W.2d at 670; Meshwert, 549 S.W.2d at 384; Kidd, 1 S.W.3d at 310.

The appeal is dismissed for want of jurisdiction.


Summaries of

Gibbs v. Allsup Enterprises

Court of Appeals of Texas, Seventh District, Amarillo
Aug 18, 2004
153 S.W.3d 603 (Tex. App. 2004)

concluding explanation was unreasonable where notice of appeal was intentionally delayed until a final decision had been made as to whether or not to appeal

Summary of this case from Gomez v. Capitol Cty. Mut.

concluding explanation unreasonable where notice of appeal was intentionally delayed until a final decision had been made as to whether or not to appeal

Summary of this case from HSBC BK NV v. Kendrick, Jr.

waiting on order denying motion for new trial to determine whether to appeal not reasonable explanation

Summary of this case from Bates v. Monarch Dental Servs.
Case details for

Gibbs v. Allsup Enterprises

Case Details

Full title:Kerwin GIBBS, Appellant, v. ALLSUP ENTERPRISES, INC., Appellee

Court:Court of Appeals of Texas, Seventh District, Amarillo

Date published: Aug 18, 2004

Citations

153 S.W.3d 603 (Tex. App. 2004)

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