IN THE
TENTH COURT OF APPEALS
No. 10-06-00407-CV
In the Interest of D.M. and W.M., Children
From the 74th District Court
McLennan County, Texas
Trial Court No. 2005-3801-3
CONCURRING Opinion
Rhonda Moncrief contends in her sole issue that the court abused its discretion by refusing her request for a 180-day extension under section 263.401(b) of the Family Code. I concur in the judgment affirming the termination decree because Moncrief did not specifically present this issue to the trial court in a timely filed statement of points. See Tex. Fam. Code Ann. § 263.405(b), (i) (Vernon Supp. 2006). Thus, she has not properly preserved this issue for appellate review. Id. § 263.405(i); In re J.W.H., 222 S.W.3d 661, 662 (Tex. App.—Waco 2007, no pet.); In re A.H.L., 214 S.W.3d 45, 54 (Tex. App.—El Paso 2006, pet. denied); In re C.M., 208 S.W.3d 89, 92 n.3 (Tex. App.—Houston [14th Dist.] 2006, no pet.).
I disagree with the Chief Justice’s concurring opinion because I believe Moncrief provided a reasonable explanation for the late filing of her notice of appeal. Under Verburgt v. Dorner, an extension motion is implied if a notice of appeal is filed within fifteen days after it was due. 959 S.W.2d 615, 617 (Tex. 1997); see also Hone v. Hanafin, 104 S.W.3d 884, 886 (Tex. 2003) (per curiam). Although the motion is implied, the appellant must also provide a reasonable explanation for the late filing to avoid dismissal of the appeal. Jones v. City of Houston, 976 S.W.2d 676, 677 (Tex. 1998); Doe v. Brazoria County Child Protective Servs., 226 S.W.3d 563, 571 (Tex. App.—Houston [1st Dist.] 2007, no pet.); In re B.G., 104 S.W.3d 565, 567 (Tex. App.—Waco 2002, order); see also Hone, 104 S.W.3d at 886-87.
In Hone, the Supreme Court discussed what it means for an appellant to provide a “reasonable explanation” in this context.
We first considered the meaning of “reasonably explain” in Meshwert v. Meshwert, 549 S.W.2d 383, 383-84 (Tex. 1977) (discussing Texas Rule of Civil Procedure 21c—Rule [of Appellate Procedure] 26.3’s predecessor). We held that a reasonable explanation is “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.” Id. at 384. In Garcia v. Kastner Farms, Inc., we applied the Meshwert standard to all cases in which an appellant fails to file a notice of appeal timely. 774 S.W.2d at 669-70. We explained that, “[w]hile the definition of reasonable explanation is settled, the courts of appeals have not applied the definition consistently.” Id. at 669-70. We emphasized that, under the liberal standard of review applied in these cases, “[a]ny conduct short of deliberate or intentional noncompliance qualifies as inadvertence, mistake or mischance . . . .” Id. at 670.
Hone, 104 S.W.3d at 886-87 (some citations omitted); accord Doe, 226 S.W.3d at 571; B.G., 104 S.W.3d at 567.
Here, in response to a notice from the Clerk of this Court, Moncrief’s appellate counsel provided the following explanation for her untimely notice of appeal:
Moncrief did not inform trial counsel . . . of her desire to appeal until Friday afternoon, December 8, 2006. [Trial counsel] immediately drafted a Notice of Appeal and filed it that same day, and moved the trial court that same day to appoint appellate counsel. Thus, the reason for the delay in filing the Notice was the fact that the Respondent did not inform trial counsel to appeal until December 8, 2006. It is not unusual for a party to not understand the importance of deadlines in legal proceedings. Once trial counsel became aware that an appeal was desired, he filed for it at once, still within the extension period. (citations to record omitted)
Moncrief’s court-appointed trial counsel filed the notice of appeal eleven days after it was due and contemporaneously with a motion to withdraw because he does “not handle appeals.” However, appellate counsel was not appointed until after the deadline for filing an extension motion.
From trial counsel’s letter to the trial court explaining the reasons for the withdrawal, it appears that trial counsel did not understand the applicable deadlines for perfecting such an appeal. Under these circumstances, Moncrief’s explanation constitutes a “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.” See Hone, 104 S.W.3d at 886 (quoting Meshwert, 549 S.W.2d at 384); Doe, 226 S.W.3d at 571 (same); accord B.G., 104 S.W.3d at 567. Thus, I believe Moncrief has provided a reasonable explanation for the late filing of her notice of appeal.
I disagree with the dissenting opinion because Moncrief has not briefed the issue of whether section 263.405 violates her right to due process. Instead, she very briefly touched on this subject in her response to a dismissal notice sent by the Clerk of this Court. Specifically, Moncrief contended in this response that it would be a denial of due process to fault her for failing to file a statement of points under these circumstances and that this Court can address matters of fundamental error regardless of whether a statement of points has been filed. I address these contentions in reverse order.
Except for fundamental error, appellate courts are not authorized to consider issues not properly raised by the parties. See In the Interest of B.L.D., 113 S.W.3d 340, 350-52 (Tex. 2003). We have described fundamental error as those instances in which error directly and adversely affects the interest of the public generally, as that interest is declared by the statutes or Constitution of our State, or instances in which the record affirmatively and conclusively shows that the court rendering the judgment was without jurisdiction of the subject matter. See McCauley v. Consol. Underwriters, 157 Tex. 475, 304 S.W.2d 265, 266 (1957).
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 577 (Tex. 2006).
The “civil doctrine of fundamental error is a creature of common law.” B.L.D., 113 S.W.3d at 351 n.10. As such, it may be rejected by the Legislature. See, e.g., Durham Transp. Co. v. Beettner, 201 S.W.3d 859, 874 (Tex. App.—Waco 2006, pet. denied) (discussing how “the Legislature effectively overruled” Texas cases holding that prejudgment interest was recoverable on future damages).
The Legislature has apparently concluded that the common-law doctrine of fundamental error has no application in cases governed by section 263.405. See In re E.A.R., 201 S.W.3d 813, 814-15 & n.2 (Tex. App.—Waco 2006, no pet.) (Vance, J., concurring) (observing that the 79th Legislature enacted section 263.405(i) because of appellate courts’ refusal to recognize that the statement of points required by subsection (b) of that statute [enacted by the 77th Legislature] was a procedural prerequisite for the presentation of issues on appeal). As the bill analysis states, “HB 409 conclusively establishes that the Legislature expects litigants to comply with Section 263.405(b) of the Family Code.” Id. at 815 n.2 (quoting House Comm. on Juvenile Justice & Family Issues, Bill Analysis, Tex. H.B. 409, 79th Leg., R.S. (2005)). In light of this statement of purpose and the plain language of section 263.405(i), it is my view that the common-law doctrine of fundamental error does not apply in cases governed by section 263.405.
Moncrief also contended in her response that any insistence on compliance with section 263.405(b) under the unique circumstances of her case operates to deprive her of due process. However, she did not raise this issue in her brief. It is well-settled that this Court cannot address an issue in a civil appeal which has not been raised as an issue or point of error in the appealing party’s brief. See Pat Baker Co. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998) (per curiam); French v. Gill, 206 S.W.3d 737, 743 (Tex. App.—Texarkana 2006, no pet.); Dawson v. Briggs, 107 S.W.3d 739, 744 (Tex. App.—Fort Worth 2003, no pet.); but see Pena v. State, 191 S.W.3d 133, 136 (Tex. Crim. App. 2006) (“appellate courts are free to review ‘unassigned error’” in criminal appeals). Accordingly, absent properly assigned error, this Court cannot address the question of whether section 263.405(i) violates Moncrief’s right to due process.
Raising the issue of due process in a response is not the same as briefing the issue. Prudent appellate counsel should always address preservation with respect to any issue presented for appellate review, even if this is done in a single sentence with an appropriate citation to the record (e.g., “This issue was preserved by appellant’s timely filed statement of points. II C.R. at 100.”). See Walder v. State, 85 S.W.3d 824, 827 (Tex. App.—Waco 2002, order) (per curiam) (in argument portion of brief, “counsel should explain how the issue or point presented has been preserved for appellate review . . . ‘with appropriate citations to authorities and to the record’”). Or, as this Court said in Walder, “counsel should explain . . . why no preservation is required.” Id.
Here, Moncrief failed to preserve her complaint because she did not file a statement of points. Under these circumstances, her appellate counsel should have acknowledged this failure (particularly in view of the notice sent by the Clerk of this Court which expressly referenced this failure) and briefed the issue of why Moncrief should be excused from compliance with section 263.405. Such briefing would ostensibly present argument and authorities to support the due process complaint on which the dissent relies. Presenting this issue in the appellant’s brief would also presumably lead the Department to respond in the appellee’s brief with argument and authorities to demonstrate why there is no due process violation. The issue would be fully joined, and it would then be appropriate for this Court to evaluate the merits of such a complaint. However, Moncrief did not brief this issue. Therefore, I believe that this Court should not address any potential violation of her right to due process. See Pat Baker Co., 971 S.W.2d at 450; French, 206 S.W.3d at 743; Dawson, 107 S.W.3d at 744.
Because Moncrief failed to properly preserve her complaint, I concur in the judgment of affirmance.
FELIPE REYNA
Justice
Concurring opinion delivered and filed August 15, 2007
89in"> Moreland's objection that the comments were "improper" was insufficient because it was only a general objection. Such an objection does not apprise the trial court of the grounds upon which it was based. As a result, it failed to preserve the complaint, and nothing is presented for review. Therefore, we overrule point of error three.
We affirm the judgment.
BOBBY L. CUMMINGS
Justice
Before Chief Justice Thomas,
Justice Cummings, and
Justice Vance
Affirmed
Opinion delivered and filed September 15, 1993
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