Case Information

*0 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 11/12/2015 9:57:59 AM KEITH E. HOTTLE Clerk *1 ACCEPTED 04-15-00683-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 11/12/2015 9:57:59 AM KEITH HOTTLE CLERK

NO. 04-15-00683-CV IN THE COURT OF APPEALS FOURTH JUDICIAL DISTRICT OF TEXAS SAN ANTONIO, TEXAS

BARTON WADE and MARY WADE, APPELLANTS, v.

SABR MORTGAGE LOAN 2008-1 REO SUBSIDIARY-LLC, APPELLEE. Appeal from the County Court at Law No. 10 Bexar County, Texas

Trial Court Case No. 2015CV03726 Hon. David J. Rodriguez, presiding APPELLEE’S RESPONSE TO APPELLANT’S MOTION FOR EXTENSION TIME TO FILE NOTICE OF APPEAL TO THE HONORABLE COURT OF APPEALS:

Appellee SABR Mortgage Loan 2008-1 REO Subsidiary-1 LLC files this its Response to Appellant Barton Wade’s Motion for Extension of Time to File Notice

of Appeal and respectfully shows as follows:

I. Appellant Barton Wade (“Appellant”) ^[1] filed his Notice of Appeal late. As reflected in the Docketing Statement that Appellant filed, the Trial Court’s

Judgment was signed on September 17, 2015. See Docketing Statement. Pursuant

to Texas Rule of Appellate Procedure 26.1, Appellant’s Notice of Appeal was due

on October 19, 2015. T EX . R. A PP . P. 26.1(a); see also T EX . R. A PP . 4.1(a)

(extending deadline to next business day when deadline falls on a weekend).

Appellant, however, did not file his Notice of Appeal until November 2, 2015,

which was fourteen days after it was due. See Appellant’s Notice of Appeal. On

the same day that Appellant filed his Notice of Appeal, he also filed a Motion for

Extension of Time to File Notice of Appeal. See Motion for Extension of Time to

File Notice of Appeal. Pursuant to Texas Rule of Appellate Procedure 26.3, an

appellant may file a motion to extend the time to file a notice of appeal up to

fifteen days after the date that the appellant’s notice of appeal was due. T EX . R.

A PP . P. 26.3.

But even if a notice of appeal is filed within this fifteen-day grace period, the appellant must offer a reasonable explanation for failing to file the notice of appeal

in a timely manner. See T EX . R. A PP . P. 26.3. 10.5(b)(1)(C); Hone v. Hanafin , 104

S.W.3d 884, 885 n.1 (Tex. 2003). An explanation is reasonable if the failure to

timely file the notice of appeal was “not deliberate or intentional, but was the result

of inadvertence, mistake or mischance.” Id. at 886 (quoting Meshwert v.

Meshwert, 549 S.W.2d 383, 383-84 (Tex. 1977)); see also Dimotsis v. State Farm

Lloyds , 966 S.W.2d 657 (Tex. App.—San Antonio 1998, order).

Explanations that show an appellant’s conscious or strategic decision to wait to file a notice of appeal do not show inadvertence, mistake, or mischance. See,

e.g., Polk v. Dallas County , No. 05-13-01731-CV, 2014 Tex. App. LEXIS 3760,

2014 WL 1413737, at *1 (Tex. App.—Dallas Mar. 31, 2014, no pet.) (appellant

was aware of deadline for filing his notice of appeal, but consciously ignored the

deadline while making a determination about whether the decision to appeal made

economic sense); Hykonnen v. Baker Hughes Bus. Support Servs ., 93 S.W.3d 562,

563-64 (Tex. App.—Houston [14th Dist.], 2002, no pet.) (appellant failed to file

notice of appeal until he found attorney to represent him on appeal at little or no

cost); Weik v. Second Baptist Church of Houston , 988 S.W.2d 437, 439 (Tex.

App.—Houston [1st Dist.] 1999, pet. denied) (appellant did not file notice of

appeal because lawyer told him that if he appealed case while trial court still had

authority to reinstate, appellant would have a difficult time prosecuting claim

because of trial court's displeasure).

Appellant’s explanation for the late-filing of his Notice of Appeal falls into this same category. In his Motion for Extension of Time, he acknowledges that he

knew of the deadline, but goes on to say that he waited to file his Notice of Appeal

because he was not sure if he would have enough time to spend on the appeal. See

Motion for Extension of Time to File Notice of Appeal. He states that his mother’s

health is poor and that his health has been poor, and for those reasons, he waited to

file until he felt that he could spend enough time on the appeal. Id.

Appellant’s explanation does not meet the standard required for an extension of time under Rule 26.3. Appellant does not state that his or his mother’s health

distracted him or otherwise caused him to miss the filing deadline somehow.

Rather, he states that he “was not certain” that he would be able to devote

sufficient time to the appeal. See Motion for Extension of Time to File Notice of

Appeal. The Fourteenth Court of Appeals considered a similar argument, where

the indigent appellant waited to file a notice of appeal because he had difficulty

finding an attorney who would handle his appeal pro bono . Hykonnen , 93 S.W.3d

at 563-64. The Fourteenth Court found those explanations to be untenable because

the appellant’s decision not to file his notice of appeal on time was nevertheless

deliberate.

Here, like in Hykonnen , Appellant made a conscious decision not to file his Notice of Appeal when it was due. By definition, a conscious decision is not

“inadvertence, mistake, or mischance”. See id; see also Polk, 2014 Tex. App.

LEXIS 3760, 2014 WL 1413737, at *1; Green v. Cypress Fairbanks Med. Ctr.

Hosp ., No. 04-01-00434-CV, 2001 Tex. App. LEXIS 8559, 2001 WL 1665106, at

*1 (Tex. App.—San Antonio Dec. 31, 2001, no pet.). To the contrary, Appellant’s

decision not to file his Notice of Appeal by the deadline was “deliberate” and,

therefore, his request for an extension of time to file his Notice of Appeal is

unfounded. See Hone, 104 S.W.3d at 886.

WHEREFORE, PREMISES CONSIDERED, Appellee respectfully requests the Court deny Appellant’s Motion for Extension of Time to File Notice of Appeal,

dismiss this Appeal for want of jurisdiction, and grant Appellee with all other and

further relief to which it may be entitled.

Respectfully submitted, By: /s/ Mark D. Cronenwett MARK D. CRONENWETT Texas Bar No. 00787303 mcronenwett@mwzmlaw.com MACKIE WOLF ZIENTZ & MANN, PC 14160 N. Dallas Parkway, Suite 900 Dallas, Texas 75254 (214) 635-2650 (214) 635-2686 (Fax) ATTORNEYS FOR APPELLEE *6 CERTIFICATE OF SERVICE I hereby certify that on the 12 th day of November, 2015, a true and correct copy of the foregoing was served via regular U.S. mail and E-Serve to the

Appellants of record listed below:

Barton Wade

Mary Wade

7530 Buckboard

San Antonio, Texas 78227

Bart.Wade@outlook.com

/s/ Mark D. Cronenwett___________ MARK D. CRONENWETT

[1] Even though Mary Wade is identified as an Appellant in the style of Appellant Barton Wade’s Motion for Extension of Time to File Notice of Appeal in this matter, Mary Wade filed neither a notice of appeal nor any other documents in connection with this appeal. Therefore, Mary Wade is not a party to this appeal.

[2]