COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00395-CV
RICHARD F. WALSH, MEDICA- APPELLANTS
RENTS CO., LTD., AND MED-RCO,
INC.
V.
WOUNDKAIR CONCEPTS, INC., APPELLEES
DAN ANDERSON, AND KIM
ANDERSON
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FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 017-217058-06
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MEMORANDUM OPINION1
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On December 18, 2014, we notified Appellants Richard F. Walsh, Medica-
Rents Co., Ltd., and MED-RCO, Inc. of our concern that we lack jurisdiction over
this appeal because the notice of appeal was due November 26, 2014, but was
1
See Tex. R. App. P. 47.4.
not filed until December 18, 2014. See Tex. R. App. P. 25.1(b), 26.1(a).
Appellants admitted in their response that they had miscalculated the due date
for the notice of appeal,2 but they argued that we have jurisdiction over this
appeal because, as demonstrated by a number of actions that they had taken
and communications that they had made after the trial court signed the final
judgment, they had clearly expressed an intent to appeal.3 In light of a letter that
Appellants filed with the trial court on December 5, 2014, a date that was within
rule 26.3’s fifteen-day extension window, they moved that we extend the time to
file their notice of appeal and that their December 18, 2014 notice serve to
amend the December 5, 2014 letter. See Tex. R. App. P. 26.3; Verburgt v.
Dorner, 959 S.W.2d 615, 617 (Tex. 1997). Appellees Woundkair Concepts, Inc.,
Dan Anderson, and Kim Anderson replied that this appeal should be dismissed
because Appellants did not timely file any document in a bona fide attempt to
invoke this court’s jurisdiction. We agree with Appellees.
Consistent with the policy of applying rules of procedure liberally to reach
the merits of the appeal whenever possible, a court of appeals has jurisdiction
over an appeal if the appellant timely files an instrument in a bona fide attempt to
2
Appellants acknowledged that “counsel mistakenly believed that the
formal notice of appeal was due 15 days after the trial court lost its plenary power
on December 11, 2014 and had prepared to file the formal notice by December
26, 2014.”
3
According to Appellants, “[Appellees] and the trial court knew long before
the formal notice of appeal was due that [Appellants] intended to appeal.”
2
invoke the appellate court’s jurisdiction. Warwick Towers Council of Co-Owners
v. Park Warwick, L.P., 244 S.W.3d 838, 839 (Tex. 2008); see In re J.M., 396
S.W.3d 528, 530‒31 (Tex. 2013).
Appellants argue that they timely perfected this appeal by requesting a
copy of the reporter’s record. The notice is directed to counsel for Appellants
and states, among other things, that “you are hereby notified that request has
been made for a transcript.” If anything, the notice evidenced Appellants’ desire
to obtain the reporter’s record; nothing therein evidenced a bona fide attempt to
invoke our appellate jurisdiction. See Tex. Animal Health Comm’n v. Nunley, 598
S.W.2d 233, 234 (Tex. 1980); see also Park Warwick, L.P., 244 S.W.3d at 839.
Appellants argue that they timely perfected this appeal by filing a motion
for judgment notwithstanding the verdict, a motion for new trial, and a
supplement to those motions “in order to preserve error and identify the issues
[that they] intended to raise on appeal.” However, preserving error does not
simultaneously perfect an appeal, and unlike in J.M., in which the appellant filed
a “Motion for New Trial or, in the Alternative, Notice of Appeal,” which in part
indicated an attempt to invoke the appellate court’s jurisdiction, nothing in the
postjudgment motions filed by Appellants represented a bona fide attempt to
invoke our jurisdiction. See J.M., 396 S.W.3d at 529‒30. This case instead falls
under the rule elaborated in In re K.A.F., in which the supreme court concluded
that “filing a motion for new trial may not be considered a bona fide attempt to
invoke the appellate court’s jurisdiction.” 160 S.W.3d 923, 924 (Tex. 2005).
3
Appellants further argue that they timely perfected this appeal by filing a
certificate of written discovery and by serving responses to postjudgment
discovery requests that, among other things, indicated both a willingness and the
ability to post a supersedeas bond “if the [trial court] denies” their postjudgment
motions. Appellants rely on Gregorian v. Ewell, a case in which we held that the
appellants had invoked the jurisdiction of this court by filing a cash deposit in lieu
of a supersedeas bond within the period required for perfecting their appeal. 106
S.W.3d 257, 260 (Tex. App.—Fort Worth 2003, no pet.). However, unlike in
Gregorian, Appellants did not somehow suspend the judgment during the time for
filing the notice of appeal, and we decline to over-extend Gregorian’s limited
holding to everyday situations, such as this one, in which one party merely
notifies another party of its willingness to supersede a judgment if the trial court
denies its postjudgment motions.4 Appellants direct us to nothing in their
discovery-related documents that constitutes a bona fide attempt to invoke our
appellate jurisdiction. See Park Warwick, L.P., 244 S.W.3d at 839.
On a similar note, Appellants point to statements that were made at a
hearing in the trial court on November 25, 2014, and that “repeatedly referred to
the appeal that [Appellants] would seek if the trial court denied” their
4
Appellants’ other arguments mirroring our reasoning in Gregorian—that
Appellees knew that Appellants intended to appeal, that Appellees would not
suffer any surprise or prejudice if the appeal proceeded, and that granting the
extension would not alter the time period for perfecting appeal—are consequently
unpersuasive. See 106 S.W.3d at 260.
4
postjudgment motions. But an oral statement is not a filed document, see Sweed
v. Nye, 323 S.W.3d 873, 875 (Tex. 2010) (“[T]his Court has consistently held that
a timely filed document, even if defective, invokes the court of appeals’
jurisdiction.” (emphasis added)), and Appellants’ conditional statements that
indicated the potential for an appeal in the future were insufficient to invoke this
court’s appellate jurisdiction. See, e.g., Southerland v. Wright, No. 07-06-00147-
CV, 2006 WL 1680858, at *1‒2 (Tex. App.—Amarillo June 15, 2006, pet.
denied); Yancy v. Wolfe, 523 S.W.2d 516, 517‒18 (Tex. App.—Fort Worth 1975,
writ ref’d n.r.e.).
Appellants additionally argue that they perfected this appeal by sending a
letter to the trial court that, among other things, “address[ed] some procedural
and appellate questions that the Court posed after the hearing [on Appellants’
postjudgment motions] had concluded.” After (1) correcting several instances in
which Appellees had purportedly misconstrued the record and (2) addressing
Appellees’ “new arguments” about lost profits, Appellants (3) explained in the
letter that “[t]he Court now has three options”:
1. The Court can enter an order denying the Motion;
2. The Court can do nothing. After December 11, 2014,
the Court’s plenary power will expire, and the judgment
previously entered will become final and appealable; or
3. The Court can grant the motion for JNOV.
If the Court chooses options 1 or 2 above, then Defendants
will be forced to appeal and incur unnecessary expenses. In the
event the Court of Appeals holds that the Court erred in denying the
5
Motion, the case will likely be remanded for a new trial. [Emphasis
added.]
Construed in its entirety, the December 5, 2014 letter is nothing more than a
further attempt to convince the trial court to grant Appellants’ postjudgment
motions. This includes Appellants’ unambiguous, conditional statement that they
“will be forced to appeal” if their motion is not granted. By advising the trial court
of the specific action that they would take if the trial court did not grant their
postjudgment motion, Appellants did not concurrently make any bona fide
attempt to invoke this court’s appellate jurisdiction. See Southerland, 2006 WL
1680858, at *2 (“[Appellant] used the January 19th letter to threaten appeal as a
means of securing relief from the trial court. The document was a trial tactic
made to avoid appeal, not a bona fide attempt to invoke our jurisdiction.”).
Arguing that they perfected this appeal, Appellants direct us to an unfiled
letter that Appellees drafted and is dated December 15, 2014, and to
discussions—or “active negotiations”—between the parties that occurred that
same week, both of which regarded suspension or enforcement of the judgment.
However, among other problems, the letter and negotiations occurred after the
window for a rule-26.3 extension had already closed (December 11, 2014), and
neither the letter nor the negotiations between the parties constituted a bona fide
attempt to invoke this court’s appellate jurisdiction. See Park Warwick, L.P., 244
S.W.3d at 839.
6
Appellants rely heavily on J.M., but it is readily distinguishable. There, the
“Motion for New Trial or, in the Alternative, Notice of Appeal” that the petitioner
filed in the trial court constituted a bona fide attempt to invoke the appellate
court’s jurisdiction because (1) it stated that the appellant “wishes to appeal this
case to” the court of appeals, (2) it was partly entitled a notice of appeal, and
(3) the notice of appeal portion specifically addressed the appellate court. J.M.,
396 S.W.3d at 530. Here, Appellants’ December 5, 2014 letter (1) contains no
language, however worded, demonstrating, in any way, that Appellants “wish[] to
appeal this case to” the court of appeals, (2) it is not partly entitled a notice of
appeal, and (3) there is no portion that addresses this court. Unlike in J.M., in
which the petitioner there attempted to invoke the appellate court’s jurisdiction,
Appellants, by their December 5, 2014 letter, attempted merely to persuade the
trial court to grant their postjudgment motions by explaining that a costly appeal,
and potential reversal and remand, would follow if the motions were denied.
Appellants argue that like the petitioner in J.M., who advanced her notice
of appeal “in the alternative” to her motion for new trial, Appellants “gave, in
substance, an identical statement of intent: it would appeal if the trial court
denied its postjudgment motions.” The petitioner in J.M. may have advanced her
notice of appeal in the alternative to her motion for new trial, but she did not state
in her filing that she would appeal if the trial court denied her motion for new trial;
she flat out communicated that she appeals—an unambiguous attempt to invoke
the appellate court’s jurisdiction. Appellants did no such thing.
7
Finally, Appellants place a considerable amount of emphasis on the
language in J.M. stating that the petitioner in that case “expressed an intent to
appeal to the court of appeals.” Id. at 531. They contend that they perfected this
appeal because they too “expressed an intent to appeal.” Appellants did not
express an intent to appeal like the petitioner in J.M. expressed an intent to
appeal. Appellants’ expressions demonstrated only that they possessed an
intent to appeal if their postjudgment motions were denied; the petitioner’s
expressions in J.M. actually manifested her intent to appeal through the timely
filing of a document in a bona fide attempt to invoke the appellate court’s
jurisdiction. The latter expression perfected an appeal; the former did not.5 To
the extent that Appellants urge us to apply a standard other than the clearly
defined, workable, and well-established bona-fide-attempt-to-invoke standard
that we are bound by, we decline to do so.
Because Appellants failed to timely file any instrument in a bona fide
attempt to invoke this court’s appellate jurisdiction, including the December 5,
2014 letter upon which they rely for purposes of obtaining an extension to file the
notice of appeal, we have no choice but to deny Appellants’ motion for extension
5
And for good reason—a party can possess an intent to appeal all day and
night long, but until it actually manifests that intent by timely filing a document in
a bona fide attempt to invoke an appellate court’s jurisdiction, it is meaningless.
See Tex. R. App. P. 25.1(a) (stating that “[a]n appeal is perfected when a written
notice of appeal is filed with the trial court clerk,” not when a party merely
possesses an intent to appeal).
8
of time and to dismiss this appeal for want of jurisdiction. See Tex. R. App. P.
43.2(f).
/s/ Bill Meier
BILL MEIER
JUSTICE
PANEL: MEIER, GABRIEL, AND SUDDERTH, JJ.
DELIVERED: February 5, 2015
9