ZEE TV USA INC v. REGENCY CENTERS (2011)

MEMORANDUM OPINION

Before the Court is Zee TV USA, Inc.'s motion for extension of time to file its notice of appeal.   The judgment Zee TV seeks to appeal was signed June 9, 2010, but Zee TV did not receive notice or acquire actual knowledge of the judgment until July14, 2010.   See Tex.R. Civ. P. 306a(4),(5);  Tex.R.App. P. 4.2. Under Texas Rules of Appellate Procedure 4.2 and 26.1, Zee TV's deadline for filing the notice of appeal began to run from that date.   See Tex.R.App. P. 4.2(a)(1), 26.1.   Because Zee TV timely filed a motion for new trial, its notice of appeal was due October 12, 2010-ninety days from July 14.   See Tex.R.App. P. 26.1(a)(1).   Zee TV filed its notice one day later, on October 13, 2010.   In its motion, Zee TV explained the delay was a result of its “evaluating whether to proceed with the appeal after the trial court denied the Motion for New Trial” and its “engag[ing] in settlement negotiations with Appellee during the time frame when [the] Notice of Appeal was due.”

The timely filing of a notice of appeal is jurisdictional in this Court and, absent a timely filed notice or timely filed extension motion setting forth a reasonable explanation for the need for the extension, we must dismiss the appeal.   See id. 10.5(b), 25.1(b), 26.3;  see also Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex.1997).   The Texas Supreme Court has defined “reasonable explanation” to mean “ ‘any plausible statement of circumstances indicating 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 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).

Zee TV's explanation does not indicate an unawareness of the deadline or inadvertence, mistake, or mischance.   See Weik, 988 S.W.2d at 439.   Instead, the explanation suggests Zee TV was aware of the deadline for filing the notice of appeal but consciously ignored the deadline.   Accordingly, we conclude the explanation is not reasonable, deny the extension motion, and dismiss the appeal for want of jurisdiction.

101297F.P05

PER CURIAM