COURT OF APPEALS
CATHERINE STONE FOURTH COURT OF APPEALS DISTRICT KEITH E. HOTTLE
CHIEF JUSTICE CADENA-REEVES JUSTICE CENTER CLERK OF COURT
KAREN ANGELINI 300 DOLOROSA, SUITE 3200
SANDEE BRYAN MARION SAN ANTONIO, TEXAS 78205-3037
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REBECA C. MARTINEZ (210) 335-2635
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JUSTICES (210) 335-2762
April 2, 2013
Barry G. Johnson Carrie L. Garcia
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Arlington, TX 76012 Plano, TX 75094
RE: Court of Appeals Number: 04-12-00480-CV
Trial Court Case Number: 2010-50194-367
Style: Greg Chambers and Trina Bradley
v.
Eusebio Maldonado
Enclosed please find the order which the Honorable Court of Appeals has
issued in reference to the above styled and numbered cause.
If you should have any questions, please do not hesitate to contact me.
Very truly yours,
KEITH E. HOTTLE, CLERK
_____________________________
Elizabeth Montoya
Deputy Clerk, Ext. 53857
cc: Sherri Adelstein
Fourth Court of Appeals
San Antonio, Texas
April 2, 2013
No. 04-12-00480-CV
Greg CHAMBERS and Trina Bradley,
Appellants
v.
Eusebio MALDONADO,
Appellee
From the 367th District Court, Denton County, Texas
Trial Court No. 2010-50194-367
Jonathan Mark Bailey, Judge Presiding
ORDER
The trial court signed a dismissal order on April 18, 2012. On May 14, 2012, appellants
filed an unverified motion to reinstate. Although a verified motion to reinstate extends the time
for perfecting an appeal, an unverified motion to reinstate does not extend the deadline.
McConnell v. May, 800 S.W.2d 194, 194 (Tex. 1990) (per curiam); Butts v. Capitol City Nursing
Home, Inc., 705 S.W.2d 696, 697 (Tex. 1986) (per curiam); In re Valliance Bank, No. 02-12-
00255-CV, 2012 WL 5512455, at *2 (Tex. App.—Fort Worth Nov. 15, 2012, orig. proceeding).
In Guest v. Dixon, 195 S.W.3d 687, 688 (Tex. 2006), the Texas Supreme Court acknowledged its
holdings in McConnell and Butts, but asserted “Since those cases we have repeatedly stressed
that procedural rules should be construed and applied so that the right of appeal is not
unnecessarily lost to technicalities.” “Although the supreme court admonished in Guest and has
continue to stress that courts should strive to reach the merits of cases when reasonably possible
and that litigants’ rights (whether of appeal or of a day in court) should not be lost based upon
procedural technicalities, that line of cases has not overruled McConnell or Butts, and we remain
bound by those decisions.” In re Valliance Bank, 2012 WL 5512455, at *4.
Because the appellants’ unverified motion to reinstate did not extend the deadline for
perfecting the appeal, the notice of appeal was due to be filed on May 18, 2012. See TEX. R.
APP. P. 26.1(a). Appellants did not file their notice of appeal until July 17, 2012. On July 25,
2012, appellants filed a second motion to reinstate, requesting the trial court to treat its prior
motion to reinstate as a motion for new trial. This same argument was made to the intermediate
appellate court in Butts, 700 S.W.2d 628, 630 (Tex. App.—Austin 1985), writ ref’d n.r.e., 705
S.W.2d 696 (Tex. 1986). That court rejected the argument, asserting, “Without treating every
motion to reinstate as a motion for new trial, it is difficult to see how the motion in question
could be other than a motion to reinstate.” Id. In refusing the application for writ of error, the
Texas Supreme Court agreed that “no proper motion was filed with the court” to extend the
deadline for perfecting the appeal. Butts, 705 S.W.2d at 697.
A motion for extension of time is necessarily implied when an appellant, acting in good
faith, files a notice of appeal beyond the time allowed by Rule 26.1 but within the fifteen-day
grace period provided by Rule 26.3 for filing a motion for extension of time. See Verburgt v.
Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (construing the predecessor to Rule 26). But “once
the period for granting a motion for extension of time under Rule [26.3] has passed, a party can
no longer invoke the appellate court’s jurisdiction.” Id.
It is therefore ORDERED that appellant show cause in writing within fifteen days from
the date of this order why this appeal should not be dismissed for lack of jurisdiction.
It is so ORDERED on April 2, 2013.
PER CURIAM
ATTESTED TO: ____________________________________
Keith E. Hottle
Clerk of Court
MINUTES
Court of Appeals
Fourth Court of Appeals District
San Antonio, Texas
April 2, 2013
No. 04-12-00480-CV
Greg CHAMBERS and Trina Bradley,
Appellants
v.
Eusebio MALDONADO,
Appellee
From the 367th District Court, Denton County, Texas
Trial Court No. 2010-50194-367
Jonathan Mark Bailey, Judge Presiding
ORDER
The trial court signed a dismissal order on April 18, 2012. On May 14, 2012, appellants
filed an unverified motion to reinstate. Although a verified motion to reinstate extends the time
for perfecting an appeal, an unverified motion to reinstate does not extend the deadline.
McConnell v. May, 800 S.W.2d 194, 194 (Tex. 1990) (per curiam); Butts v. Capitol City Nursing
Home, Inc., 705 S.W.2d 696, 697 (Tex. 1986) (per curiam); In re Valliance Bank, No. 02-12-
00255-CV, 2012 WL 5512455, at *2 (Tex. App.—Fort Worth Nov. 15, 2012, orig. proceeding).
In Guest v. Dixon, 195 S.W.3d 687, 688 (Tex. 2006), the Texas Supreme Court acknowledged its
holdings in McConnell and Butts, but asserted “Since those cases we have repeatedly stressed
that procedural rules should be construed and applied so that the right of appeal is not
unnecessarily lost to technicalities.” “Although the supreme court admonished in Guest and has
continue to stress that courts should strive to reach the merits of cases when reasonably possible
and that litigants’ rights (whether of appeal or of a day in court) should not be lost based upon
procedural technicalities, that line of cases has not overruled McConnell or Butts, and we remain
bound by those decisions.” In re Valliance Bank, 2012 WL 5512455, at *4.
Because the appellants’ unverified motion to reinstate did not extend the deadline for
perfecting the appeal, the notice of appeal was due to be filed on May 18, 2012. See TEX. R.
APP. P. 26.1(a). Appellants did not file their notice of appeal until July 17, 2012. On July 25,
2012, appellants filed a second motion to reinstate, requesting the trial court to treat its prior
motion to reinstate as a motion for new trial. This same argument was made to the intermediate
appellate court in Butts, 700 S.W.2d 628, 630 (Tex. App.—Austin 1985), writ ref’d n.r.e., 705
S.W.2d 696 (Tex. 1986). That court rejected the argument, asserting, “Without treating every
motion to reinstate as a motion for new trial, it is difficult to see how the motion in question
could be other than a motion to reinstate.” Id. In refusing the application for writ of error, the
Texas Supreme Court agreed that “no proper motion was filed with the court” to extend the
deadline for perfecting the appeal. Butts, 705 S.W.2d at 697.
A motion for extension of time is necessarily implied when an appellant, acting in good
faith, files a notice of appeal beyond the time allowed by Rule 26.1 but within the fifteen-day
grace period provided by Rule 26.3 for filing a motion for extension of time. See Verburgt v.
Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (construing the predecessor to Rule 26). But “once
the period for granting a motion for extension of time under Rule [26.3] has passed, a party can
no longer invoke the appellate court’s jurisdiction.” Id.
It is therefore ORDERED that appellant show cause in writing within fifteen days from
the date of this order why this appeal should not be dismissed for lack of jurisdiction.
It is so ORDERED on April 2, 2013.
PER CURIAM
ATTESTED TO: /s/ Keith E. Hottle
Keith E. Hottle
Clerk of Court
Entered this 2nd day of April, 2013 VOL____PAGE____