DISMISS and Opinion Filed April 6, 2022 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-21-01149-CV 

A TO Z WHOLESALE WINE & SPIRITS, LLC, AMAR ALI, AND 

NUR ALI, Appellants 

V. 

SPECTRA BANK F/K/A RIVERBEND BANK, Appellee 

On Appeal from the 192nd Judicial District Court 

Dallas County, Texas 

Trial Court Cause No. DC-20-02050 

MEMORANDUM OPINION 

Before Chief Justice Burns, Justice Molberg, and Justice Goldstein 

Opinion by Justice Goldstein 

Before the Court is appellants’ motion for extension of time to file their notice 

of appeal from the trial court’s September 8, 2021 final summary judgment. See 

TEX. R. APP. P. 26.3. Because appellants timely filed a motion for new trial, their 

notice of appeal was due December 7, 2021, within ninety days of judgment, or, with 

an extension motion, December 22, 2021, fifteen days later. See id. 26.1(a), 26.3. 

The notice of appeal was filed December 22. 
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Appellants explain in their extension motion that, rather than filing the notice 

of appeal by December 7 in accordance with the rules of appellate procedure, they 

relied on Texas Rule of Civil Procedure 329b(e) and filed it after their motion for 

new trial was overruled by operation of law in order “to allow for complete 

disposition of all motions and dispositive issues below.”1

 See TEX.R.CIV. P. 329b(e) 

(providing that trial court’s plenary power expires thirty days after a motion for new 

trial is overruled by operation of law). Appellee opposes the motion, asserting that 

appellants’ explanation fails to satisfy the “reasonableness” standard of rule 26.3. 

We agree with appellee. 

It is well-settled that the timely filing of a notice of appeal is jurisdictional. 

See 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). An appellate court may extend the time 

for filing the notice of appeal under rule 26.3 if the party filing the appeal offers a 

reasonable explanation for the delay in filing. See TEX. R. APP. P. 10.5(b), 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.” Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 670 (Tex. 1989) 

1

 The notice of appeal was filed thirty days after the new trial motion was overruled by operation of 

law. See TEX. R. CIV. P. 329b(c) (providing that, if a motion for new trial is not determined by written 

order signed within seventy-five days of judgment, it is overruled by operation of law). 
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(citation omitted). An explanation that demonstrates a conscious or strategic 

decision to wait is not reasonable. See, e.g., Hykonnen v. Baker Hughes Bus. Support 

Servs., 93 S.W.3d 562, 563-64 (Tex. App.—Houston [14th Dist.] 2002, no pet.) 

(waiting until representation secured not reasonable); Weik v. Second Baptist Church 

of Houston, 988 S.W.2d 437, 439 (Tex. App.—Houston [1st Dist.] 1999, pet. denied) 

(waiting until trial court’s plenary power expired in event trial court reinstated case 

not reasonable). 

As appellee notes in its response, we have repeatedly held that delay caused 

by waiting for the trial court to rule on a post-judgment motion or for the trial court’s 

plenary power to expire is unreasonable as it reflects an awareness of the deadline 

for filing a notice of appeal but a conscious decision to ignore it. See, e.g., Daoudi 

v. Klalib, No. 05-21-00145-CV, 2021 WL 1660644, at *1 (Tex. App.—Dallas Apr. 

28, 2021, no pet.) (mem. op.); Zhao v. Lone Star Engine Installation Ctr., Inc., No. 

05-09-01055-CV, 2009 WL 3177578, at *1-2 (Tex. App.—Dallas Oct. 6, 2009, pet. 

denied) (mem. op) (per curiam). In a reply, appellants assert that appellee “ignores” 

their reliance on rule 329b(e). They maintain the notice of appeal “was inadvertently 

and mistakenly delayed by the time frame for overruling the motion for new trial by 

operation of law.” Yet, they also assert in that same reply that “had grant of a new 

trial been made while plenary power was in effect, the notice of filing this appeal 

would fall to injustice.” Appellants’ own argument demonstrates a conscious 

disregard of the deadline in favor of waiting for a ruling on their new trial motion. 
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Accordingly, we deny the extension motion and dismiss the appeal for want of 

jurisdiction. See TEX. R. APP. P. 42.3(a); Weik, 988 S.W.2d 439. 

211149F.P05 

 

/Bonnie Lee Goldstein/

BONNIE LEE GOLDSTEIN 

JUSTICE 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

A TO Z WHOLESALE WINE & 

SPIRITS, LLC, AMAR ALI, AND 

NUR ALI, Appellants 

No. 05-21-01149-CV V. 

SPECTRA BANK F/K/A 

RIVERBEND BANK, Appellee 

 On Appeal from the 192nd Judicial 

District Court, Dallas County, Texas 

Trial Court Cause No. DC-20-02050. 

Opinion delivered by Justice 

Goldstein, Chief Justice Burns and 

Justice Molberg participating. 

 In accordance with this Court’s opinion of this date, we DISMISS the appeal. 

 We ORDER that appellee Spectra Bank f/k/a Riverbend Bank recover its 

costs, if any, of this appeal from appellants A to Z Wholesale Wine & Spirits, LLC, 

Amar Ali, and Nur Ali. 

Judgment entered April 6, 2022.