Gilberto A. Rojas, Jr. v. Sharon Braun Ph.D.; Law Office of Taylor & Correa, P.C., and Ray Taylor, Individually--Appeal from 224th Judicial District Court of Bexar County

No. 04-00-00877-CV

Gilberto A. ROJAS, Jr.,
Appellant
v.
Sharon BRAUN, Ph.D., et al.,
Appellee
From the 224th Judicial District Court, Bexar County, Texas
Trial Court No. 2000-CI-05305
Honorable Michael Peden, Judge Presiding

PER CURIAM

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Alma L. L pez, Justice

Delivered and Filed: February 7, 2001

DISMISSED FOR LACK OF JURISDICTION

The trial court signed a final judgment on November 14, 2000. The notice of appeal was due to be filed on December 22, 2000. A timely motion for extension of time to file the notice of appeal was filed on December 27, 2000. See Tex. R. App. P. 26.3.

Rule 26.3 of the Texas Rules of Appellate Procedure requires a motion for extension of time to file a notice of appeal to comply with rule 10.5(b). See Tex. R. App. P. 26.3. Rule 10.5(b)(2) requires a motion for extension of time to file a notice of appeal to include: (1) the deadline for the filing of the notice of appeal and the facts relied on to reasonably explain the need for an extension; (2) the identity of the trial court; (3) the date of the trial court's judgment; and (4) the case number and style of the case in the trial court. See Tex. R. App. P. 10.5(b)(2). In addition, rule 10.2 requires a motion to be verified if it requires proof of facts that are: (1) not in the record; (2) not within the court's knowledge in its official capacity; or (3) not within the personal knowledge of the attorney signing the motion. See Tex. R. App. P. 10.2. Verification can be by affidavit or other satisfactory evidence. See Tex. R. App. P. 10.2.

The motion for extension of time filed by appellant, Gilberto R. Rojas, Jr. ("Rojas"), relies upon the fact that he had been unable to acquire the funds for prosecuting an appeal until December 20, 2000. This inability to acquire the funds requires proof of facts that are: (1) not in the record; (2) not within the court's knowledge in its official capacity; and (3) not within the personal knowledge of the attorney signing the motion. Therefore, the motion was required to be verified. See Tex. R. App. P. 10.2. Assuming this court could ignore the lack of compliance with the verification requirement by relying upon the implicit motion available under the Texas Supreme Court's holding in Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997), Rojas was still required to offer a reasonable explanation for failing to file the notice of appeal in a timely manner.

"[A]ny plausible statement of circumstances indicating that failure to file ... was not deliberate or intentional, but was the result of inadvertance, mistake, or mischance, [would] be accepted as a reasonable explanation." Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 670 (Tex. 1989); see also Dimotsis v. State Farm Lloyds, 966 S.W.2d 657, 657 (Tex. App.--San Antonio 1998, no pet.). Any conduct short of deliberate or intentional noncompliance qualifies as inadvertence, mistake or mischance--even if that conduct can also be characterized as professional negligence. Garcia v. Kastner Farms, Inc., 774 S.W.2d at 670; Dimotsis v. State Farm Lloyds, 966 S.W.2d at 657.

In this case, Rojas knew the deadline for filing the notice of appeal, but he deliberately failed to file the notice of appeal until he knew he would be able to raise the funds. Rojas had several options available in seeking to appeal the trial court's judgment if he was unable to raise the funds. Rojas could have filed a timely notice of appeal accompanied by an affidavit of indigence. See See Tex. R. App. P. 20.1. Because the notice of appeal is filed in the trial court, and the fee is not collected until this court receives the notice of appeal, Rojas could also have filed a timely notice of appeal, and, in the event the fee became due before Rojas was able to raise the funds, Rojas could have requested an extension of time to pay the fee, detailing his efforts to raise the funds. Given these options that were available to Rojas, his decision to ignore the deadline for filing until the funds were raised is not a reasonable explanation for failing to file the notice of appeal in a timely manner. The appeal is dismissed for lack of jurisdiction. All costs of the appeal are assessed against Rojas.

PER CURIAM

DO NOT PUBLISH