CourtListener 9500258•Micah Stephene Boyle v. Ellen Boyle Duncan, Charles A. Duncan and Pat Boyle
Micah Stephene Boyle v. Ellen Boyle Duncan, Charles A. Duncan and Pat Boyle
CourtListener 9500258Txctapp53 mai 2024
Texte intégral
DISMISS and Opinion Filed May 3, 2024
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-24-00085-CV
MICAH STEPHENE BOYLE, Appellant
V.
ELLEN BOYLE DUNCAN, CHARLES A. DUNCAN AND PAT BOYLE,
Appellees
On Appeal from the 57th District Court
Bexar County, Texas
Trial Court Cause No. 2020CI02365
MEMORANDUM OPINION
Before Justices Reichek, Goldstein, and Garcia
Opinion by Justice Reichek
This appeal challenges the trial court’s September 28, 2023 final judgment.1
Because a timely motion for new trial was filed, the notice of appeal was due no later
than December 27, 2023, or with an extension motion, no later than January 11,
2024. See TEX. R. APP. P. 26.1(a), 26.3. The notice of appeal was filed January 8,
2024, within the extension period, but without an extension motion.
1
Pursuant to its docket equalization authority, the Texas Supreme Court transferred the appeal from
the Fourth Court of Appeals District, San Antonio, Texas, to this Court. See TEX. GOV’T CODE ANN. §
73.001.
At our direction, appellant filed an extension motion. See Hone v. Hanafin,
104 S.W.3d 884, 886 (Tex. 2003) (per curiam) (extension motion implied in notice
of appeal filed within extension period). Appellant explains in the motion that she
filed the notice of appeal late “based on the decision by the trial court to hold an
actual hearing” on the new trial motion on December 20, 2023, which was after the
motion had been overruled by operation of law.
To obtain an extension for filing a notice of appeal, the party appealing must
offer a reasonable explanation for the delay in filing. See TEX. R. APP. P.
10.5(b)(1)(C), 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.” Hone, 104 S.W.3d at 886 (quoting
Meshwert v. Meshwert, 549 S.W.2d 383, 384 (Tex. 1977)). “Any conduct short of
deliberate or intentional noncompliance qualifies as inadvertence, mistake, or
mischance[.]” Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 670 (Tex. 1989).
As asserted by appellee Ellen Boyle Duncan in her response, waiting for a
trial court to hear a motion for new trial is not a reasonable explanation. See Griego
v. Griego, No. 04-24-00173-CV. 2024 WL 1643711, at *1 (Tex. App.—San Antonio
Apr. 17, 2024, no pet. h.) (per curiam) (mem. op.); N. Cent. Baptist Hosp. v. Chavez,
No. 04-20-00590-CV, 2021 WL 983351, at *1 (Tex. App.—San Antonio Mar. 17,
2021, no pet.) (mem. op.); Daniel v. Daniel, 05-17-00469-CV, 2017 WL 2645432,
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at *1 (Tex. App.—Dallas June 20, 2017, no pet.) (mem. op.). Accordingly, we deny
the extension motion and dismiss the appeal. See TEX. R. APP. P. 42.3(a); 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 a notice of appeal is jurisdictional).
/Amanda L. Reichek/
AMANDA L. REICHEK
JUSTICE
240085F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
MICAH STEPHENE BOYLE, On Appeal from the 57th District
Appellant Court, Bexar County, Texas
Trial Court Cause No. 2020CI02365.
No. 05-24-00085-CV V. Opinion delivered by Justice
Reichek, Justices Goldstein and
ELLEN BOYLE DUNCAN, Garcia participating.
CHARLES A. DUNCAN AND
PAT BOYLE, Appellees
In accordance with this Court’s opinion of this date, we DISMISS the appeal.
We ORDER that appellees Ellen Boyle Duncan, Charles A. Duncan and Pat
Boyle recover their costs, if any, of this appeal from appellant Micah Stephene
Boyle.
Judgment entered May 3, 2024
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