JJW DEVELOPMENT LLC AND JOHN WINGFIELD JR v. STRAND SYSTEMS ENGINEERING INC (2010)

MEMORANDUM OPINION

Before the Court is appellants' motion to extend time to file their notice of appeal from the trial court's September 22, 2010 order granting appellee's motion to dismiss suit.   According to appellants, appellee filed its motion pursuant to section 150.002 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem.Code Ann. § 150.002 (West Supp.2010).   That section provides for the dismissal of any action or arbitration proceeding for damages arising out of the provision of professional services by a licensed or registered professional if the plaintiff fails to file a required certificate of merit.   Id. § 150.002(a),(b), (e).   An order under that section is an interlocutory order and immediately appealable.   Id. § 150.002(f).

Appeals from interlocutory orders are accelerated and must be filed within twenty days after the order is signed.  Tex.R.App. P. 26.1(b), 28.1(a), (b).  An appellate court may extend this deadline if, within fifteen days after the deadline, the appellant files a motion that sets forth a reasonable explanation for the need for the extension.   See id. 10.5(b)(2), 26.3.   An explanation is “reasonable” if it “indicate[s] that failure to file within the [required] 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, 669 (Tex.1989) (quoting Meshwert v. Meshwert, 549 S.W.2d 383, 384 (Tex.1977)).   An explanation that shows a conscious or strategic decision to wait to file the notice of appeal is not reasonable.   See, e.g., Hykonnen v. Baker Hughes Bus. Support Servs., 93 S.W.3d 562, 563-64 (Tex.App.-Houston [14th Dist.] 2002, no pet.) (waiting until representation secured);  Weik v. Second Baptist Church of Houston, 988 S.W.2d 437, 439 (Tex.App.-Houston [1st Dist.] 1999, pet. denied) (waiting until trial court's plenary power expired in event trial court reinstated case).

Appellants' notice of appeal was due October 12, 2010.   See Tex.R.App. P. 26.1(b), 28.1(a),(b).  Their motion to extend time was filed October 26, 2010, within the fifteen-day extension period allowed.   See id. 26.3.   However, appellants explain in their motion that they did not timely file their notice of appeal because they were awaiting the trial court's reconsideration of the dismissal.   This explanation is unreasonable.   See Weik, 988 S.W.2d at 439.   It suggests appellants were aware of the deadline for filing the notice of appeal but consciously ignored the deadline in favor of waiting for a ruling on their motion for reconsideration.   See id.   Further, appellants do not indicate in their motion that they were unaware of the deadline for filing a notice of appeal or that their failure to timely file a notice of appeal resulted from inadvertence, mistake, or mischance.   See id.   We deny the motion to extend time and dismiss the appeal for want of jurisdiction.

101359F.P05

PER CURIAM