Michelle Jahner v. Ashlyn Jahner
05-15-00225-CV
| Tex. App. | Apr 28, 2015Background
- Appellant Michelle Jahner sought to appeal a protective order under Texas Family Code chapter 85 signed November 17, 2014.
- She filed a motion to modify/correct/reform the protective order on December 17, 2014 (within 30 days), which tolled the appellate deadline.
- The appellate deadline (assuming tolling) made a notice of appeal due by February 16, 2015; Michelle filed her notice on February 25, 2015.
- Appellant requested an extension of time to file the notice of appeal; the Court required a Rule 10.5(b) motion explaining the need for extension.
- Appellant explained she waited for a scheduled trial-court hearing (set for February 19, 2015) and only filed the notice after the court announced the motion was overruled by operation of law.
- The Court found this was a deliberate choice to await the trial-court timetable rather than an inadvertent mistake, denied the extension, and dismissed the appeal for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellant provided a reasonable explanation under Tex. R. App. P. 10.5(b) to extend the notice-of-appeal deadline | Michelle argued she awaited the trial-court hearing outcome before deciding to appeal, so the late filing was excusable | Ashlyn (respondent) argued the decision to wait was a conscious choice and not inadvertence | Court held waiting for the trial-court hearing was a conscious decision, not a reasonable explanation, so extension denied |
| Whether the court has jurisdiction without a timely or properly extended notice of appeal | Michelle implicitly argued jurisdiction should be preserved by extension | Ashlyn argued no timely notice or valid extension existed, depriving appellate jurisdiction | Court held without timely notice or valid extension, it lacks jurisdiction and dismissed the appeal |
Key Cases Cited
- Garcia v. Kastner Farms, Inc., 774 S.W.2d 668 (Tex. 1989) (defines “reasonable explanation” for late filing as inadvertence, mistake, or mischance)
- Hykonnen v. Baker Hughes Bus. Support Serv., 93 S.W.3d 562 (Tex. App.—Houston [14th Dist.] 2002) (example where delay to secure low-cost counsel was not reasonable)
- Weik v. Second Baptist Church of Houston, 988 S.W.2d 437 (Tex. App.—Houston [1st Dist.] 1999) (example where strategic choice not to file did not excuse late appeal)