Barton Wade v. SABR Mortgage Loan 2008-1 REO Subsidiary-1 LLC
04-15-00683-CV
| Tex. App. | Nov 12, 2015Background
- Trial court signed final judgment on September 17, 2015.
- Under Tex. R. App. P. 26.1, Appellant Barton Wade’s notice of appeal was due October 19, 2015 (next business‑day rule applied).
- Wade filed his notice of appeal on November 2, 2015, 14 days late, and simultaneously moved for an extension under Tex. R. App. P. 26.3.
- Rule 26.3 permits a motion to extend the notice deadline up to 15 days after the due date, but requires a reasonable explanation for the late filing showing inadvertence, mistake, or mischance.
- Wade explained he delayed filing because of uncertain personal and his mother’s health and uncertainty whether he could devote sufficient time to the appeal—i.e., a deliberate decision to wait.
- Appellee SABR argued the explanation was deliberate rather than inadvertent; therefore the extension should be denied and the appeal dismissed for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Wade is entitled to an extension under Tex. R. App. P. 26.3 for filing a late notice of appeal | Wade: personal and family health made him unsure he could devote time to an appeal, so he waited and then filed within the 15‑day grace period | SABR: Wade’s explanation reflects a conscious, strategic decision to delay, not inadvertence or mistake | Extension denied; deliberate delay is not a reasonable explanation, so appeal dismissed for want of jurisdiction |
Key Cases Cited
- Hone v. Hanafin, 104 S.W.3d 884 (Tex. 2003) (explains Rule 26.3 requires reasonable explanation showing failure to file was inadvertent, mistaken, or by mischance)
- Meshwert v. Meshwert, 549 S.W.2d 383 (Tex. 1977) (defines ‘‘reasonable explanation’’ as inattentiveness, mistake, or mischance)
- Hykonnen v. Baker Hughes Bus. Support Servs., 93 S.W.3d 562 (Tex. App.—Houston [14th Dist.] 2002) (holding a deliberate decision to delay to find counsel is not inadvertence)
- Weik v. Second Baptist Church of Houston, 988 S.W.2d 437 (Tex. App.—Houston [1st Dist.] 1999) (discusses circumstances where conscious decisions caused untimely filing and warrant denial of extension)