Opinion
01-23-00349-CV
12-12-2023
ANDRIA SOLOMON, Appellant v. ROSEMARY BUCKLE, NICOLE D. CHES, AND HCA HEALTH SERVICES OF TEXAS, INC., Appellees
On Appeal from the 164th District Court Harris County, Texas Trial Court Case No. 2022-05959
Panel consists of Justices Goodman, Countiss, and Farris.
ORDER
GORDON GOODMAN, JUSTICE
The trial court signed its final judgment on March 27, 2023. Andria Solomon filed her notice of appeal 43 days later on May 9, 2023. Because Solomon did not file her notice within 30 days of the date on which the trial court signed the judgment and Solomon has not filed a motion to extend time to file her notice of appeal, we hereby order her to explain why she filed her notice of appeal after 30 days. If Solomon does not respond with an reasonable explanation within 10 days of the entry of this order, we will dismiss her appeal for lack of subject-matter jurisdiction.
Background
The trial court signed the judgment from which Solomon appeals on March 27, 2023. Solomon did not file a post-judgment motion, such as a motion for new trial, in the trial court. Nor did she file a motion asserting that she did not timely receive notice of the court's judgment. Solomon filed her notice of appeal on May 9, 2023, which was 43 days after the trial court signed the final judgment at issue.
Applicable Law
A timely notice of appeal is a prerequisite to appellate jurisdiction. Brumfield v. Williamson, 634 S.W.3d 170, 189 (Tex. App.-Houston [1st Dist.] 2021, pet. denied). Absent a timely notice of appeal, an appellate court must dismiss an appeal for lack of subject-matter jurisdiction. Id. at 193-94, 214; Garza v. Hibernia Nat'l Bank, 227 S.W.3d 233, 233-34 (Tex. App-Houston [1st Dist.] 2007, no pet.).
In general, a party must file a notice of appeal within 30 days after the trial court signs its judgment. See Tex. R. App. P. 26.1(a) (providing that appeal notice is due within 30 days of signing of judgment absent certain post-judgment filings). We may extend this deadline if, within 15 days after the deadline for filing the appeal notice, the party files a notice of appeal and a motion to extend the deadline. Tex. R. App. P. 26.3. The motion to extend must identify "the facts relied on to reasonably explain the need for an extension." Tex.R.App.P. 10.5(b)(1)(C), (b)(2)(A), 26.3(b).
Because dismissal without reference to the merits is disfavored, we treat a notice of appeal filed within 15 days after the 30-day deadline as if it is accompanied by a motion to extend when the appealing party fails to file a such a motion. See Gantt v. Harris Cty., 674 S.W.3d 553, 558 (Tex. App.-Houston [1st Dist.] 2023, no pet.) (stating notice of appeal filed within this 15-day window is treated as implied motion to extend when appealing party does not file motion to extend). But a party cannot sidestep the obligation to explain its need for an extension of time by the expedient of failing to file a motion to extend and instead relying on an implied one. Even when a motion to extend is implied, the appealing party must still provide us with a reasonable explanation for its failure to file its appeal notice within 30 days of the trial court's signing of the judgment. Id.; Brown Mech. Servs. v. Mountbatten Sur. Co., 377 S.W.3d 40, 42 (Tex. App.-Houston [1st Dist.] 2012, no pet.). If the party does not provide us with a reasonable explanation upon our request, we must dismiss the appeal for lack of subject-matter jurisdiction. See Coronado v. Farming Tech., 994 S.W.2d 901, 902 (Tex. App.-Houston [1st Dist.] 1999, order) (per curiam) (directing party to give reasonable explanation or face dismissal of appeal).
In this context, a reasonable explanation consists of a plausible statement of circumstances indicating that the failure to file a notice of appeal by the 30-day deadline was not deliberate or intentional but instead resulted from inadvertence, mischance, or mistake. Doe v. Brazoria Cty. Child Protective Servs., 226 S.W.3d 563, 571 (Tex. App.-Houston [1st Dist.] 2007, no pet.). Under this standard, any conduct other than deliberate or intentional noncompliance qualifies as inadvertence, mischance, or mistake, even if the conduct is negligent. Velasquez v. Harrison, 934 S.W.2d 767, 770 (Tex. App.-Houston [1st Dist.] 1996, no writ) (per curiam); see, e.g., Doe, 226 S.W.3d at 571 (accepting as reasonable lawyer's explanation that he did not understand applicable deadline, even though his explanation indicated he lacked degree of diligence that careful practitioner would customarily exercise).
Analysis
Solomon filed her notice of appeal outside of the 30-day deadline but within the additional 15-day period in which a party may move to extend the deadline. She did not file a motion to extend, but one is implied so long as she has a reasonable explanation as to why one is necessary. She has not given us an explanation to date. To establish that we have the subject-matter jurisdiction to consider her appeal, Solomon must provide us with a reasonable explanation as to her late-filed notice.
Conclusion
We direct the appellant, Andria Solomon, to file a response providing a reasonable explanation as to why she did not file her notice of appeal by the 30-day deadline for doing so and requires an extension. This explanation should include the facts or circumstances on which she relies to explain her need for an extension. If Solomon fails to file a response providing a reasonable explanation within 10 days of the entry of this order, we will dismiss her appeal for lack of jurisdiction.
It is so ORDERED.