Opinion
05-23-00538-CV
06-29-2023
WILBERT VAUGHN, JR., Appellant v. U.S. HEALTHWORKS, INC. AND CONCENTRA, INC., Appellees
On Appeal from the 298th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-18-19397
Before Chief Justice Burns, Justice Molberg, and Justice Pedersen, III
MEMORANDUM OPINION
ROBERT D. BURNS, III CHIEF JUSTICE
Appellant appeals from the trial court's February 17, 2023 summary judgment. We questioned our jurisdiction over the appeal as it appeared to be untimely filed. See 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) (timely filing of notice of appeal is jurisdictional). Because appellant filed a timely post-judgment motion extending the appellate timetable, the notice of appeal was due on May 18, 2023 or, with an extension motion, June 2, 2023. See Tex. R. App. P. 26.1(a), 26.3. Appellant filed a notice of appeal on May 31, 2023, within the fifteen-day grace period.
An appellate court may extend the time for filing the notice of appeal under rule 26.3 if the party filing the appeal offers a reasonable explanation for the delay in filing. See id. 10.5(b), 26.3(b). The Texas Supreme Court has defined a "reasonable explanation" as "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." Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 670 (Tex. 1989) (citation omitted). An explanation that demonstrates a conscious or strategic decision to wait is not reasonable. See Daoudi v. Klalib, No. 05-21-00145-CV, 2021 WL 1660644, at *1 (Tex. App.- Dallas Apr. 28, 2021, no pet.) (mem. op.). A decision by a party to delay filing a notice of appeal until the trial court rules on a motion for new trial does not constitute a reasonable explanation. See id.
At our direction, appellant filed an extension motion. Appellant explains in the motion that he delayed filing the notice of appeal past the due date because a decision in a case before the Texas Supreme Court was expected soon. He explains that if the Court ruled in a certain way, the case would be moot and "moving forward with an appeal would be a waste of time and money. For these reasons, Appellant's counsel chose to delay filing the NOA in the hopes that the [Court] would make a ruling … prior to Appellant's filing of the NOA." This reason is no different from waiting on a ruling on a motion for new trial - that if granted, an appeal would be unnecessary. As noted above, a conscious decision to delay filing a notice of appeal does not constitute a reasonable explanation. See id. Accordingly, we deny the extension motion and dismiss the appeal and all pending motions for want of jurisdiction. See Tex. R. App. P. 42.3(a).
JUDGMENT
In accordance with this Court's opinion of this date, the appeal is DISMISSED.
It is ORDERED that appellees U.S. HEALTHWORKS, INC. AND CONCENTRA, INC. recover their costs of this appeal from appellant WILBERT VAUGHN, JR.
Judgment entered.