Guy Grantham v. Racefab, Inc.

ACCEPTED
12-15-00148-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
7/30/2015 7:23:49 PM
CATHY LUSK
CLERK

NO. 12-15-00148-CV

*** FILED IN
12th COURT OF APPEALS
TYLER, TEXAS
IN THE COURT OF APPEALS 7/30/2015 7:23:49 PM
CATHY S. LUSK
FOR THE TWELFTH JUDICIAL DISTRICT Clerk

TYLER, TEXAS

***

GUY GRANTHAM

Appellant

V.

RACEFAB, INC., ET. AL.
Appellees

***

MOTION FOR REHEARING

***

TO THE HONORABLE JUSTICES OF THE COURT:

1. The Court dismissed Grantham’s appeal on July 15, 2015 for failing to make

arrangements for the payment and filing of the clerk’s and reporter’s records.

2. Grantham then filed a motion for an extension of time to file his motion for

rehearing. Grantham asserted that an extension was necessary to allow the

Cherokee County Sherriff execute a writ of execution. Specifically, if it were

determined that Appellees have insufficient assets to satisfy the judgment,
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Grantham would dismiss the appeal and spare the parties and this Court the time

and expense of this appeal. If there were sufficient assets to satisfy the judgment

sought by Grantham, then he would pay for and file the record.

3. Grantham requested the writ of execution on July 6, 2015. To date, the

Cherokee County Sheriff, without explanation, has not executed the writ.

4. Appellees offered no opposition to Grantham’s motion for extension of time,

which was his first request for an extension of time.

5. This Court denied Grantham’s motion for extension of time on July 30,

2015—the date his rehearing is due.

6. Grantham now files this motion for rehearing and respectfully requests that

the Court reinstate this case.

7. The Supreme Court of Texas has a long–standing and unwavering

commitment to the principle that appellate courts should not dismiss an appeal for

harmless procedural defects. Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex.

1997); Grand Prairie Ind. Sch. Dist. v. Southern Parts Imports, Inc., 813 S.W.2d

499, 500 (Tex. 1991). The Supreme Court has instructed the courts of appeals to

construe the Rules reasonably, yet liberally, so that the right to appeal is not lost by

imposing requirements not absolutely necessary to effect the purpose of the rule.

Id. (citing Jamar v. Patterson, 868 S.W.2d 318, 319 (Tex. 1993)); see also, Crown

Life Ins. Co. v. Estate of Gonzalez, 820 S.W.2d 121, 121 (Tex. 1991) (rules of

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appellate procedure are to be “liberally construed so that the decisions of the courts

of appeals turn on substance rather than procedural technicality”). In this light, the

Court has consistently held that, “[a]s with any other formal defect or irregularity

in appellate procedure, the court of appeals could dismiss [an] appeal for

noncompliance only after allowing [the party] a reasonable time to correct this

defect.” Higgins v. Randall County Sheriff’s Office, 193 S.W.3d 898, 899 (Tex.

2006); see also, Ex parte F.F.A., 173 S.W.3d 605, 605 (Tex. App.—Waco 2005,

pet. denied) (“before we require payment of applicable filing fees under penalty of

dismissal, F.F.A. should be given a reasonable opportunity to cure his defective

affidavit.”).

8. Here, Grantham made a reasonable request: an extension of time to file his

motion for rehearing (and file the record) if it were determined that Appellees have

sufficient assets to satisfy the judgment Grantham seeks in this appeal. If no such

assets exist, then this appeal could be dismissed because it would be an exercise in

futility. Grantham should be afforded the opportunity to correct this harmless

procedural defect (not timely filing the record) that has no bearing on the merits.

See Verburgt, 959 S.W.2d at 616–17 (“appellate rules [disfavor] disposing of

appeals based upon harmless procedural defects.”); Higgins, 193 S.W.3d at 899

(“As with any other formal defect or irregularity in appellate procedure, the court

of appeals could dismiss the appeal for noncompliance only after allowing [the

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party] a reasonable time to correct this defect.”); Crown Life Ins., 820 S.W.2d at

121 (“the decisions of the courts of appeals [should] turn on substance rather than

procedural technicality.”).

9. Also, courts of appeals have allowed such harmless procedural deficiencies

be cured on rehearing. See, e.g.,Atkins v. Herrera, No. 10-13-00283-CV (Tex.

App.—Waco Feb. 6, 2014, order) (not designated for publication); Keeter v. State,

No. 10-13-00310-CV (Tex. App.—Waco Mar. 13, 2014, order) (not designated for

publication); Mahuron v. TDCJ, No. 10-14-00116-CV Tex. App.—Waco Aug. 14,

2014, order); see also Reed v. Ford, No. 10-13-00279-CV, 2013 WL 5290112, at

*2, n.2 (Tex. App.—Waco Sept. 19, 2013, no pet.).

9. Further, courts of appeals have reinstated cases following dismissal for

harmless procedural defects. Roger Wu v. Star Houston, Inc., 110 S.W.3d 8, 10–11

(Tex. App.—Waco 2002, no pet.) (reinstating appeal following dismissal for

failing to file clerk’s record); Graham v. Amegy Bank Nat’l Ass’n, No. 14–13–

00079–CV (Tex. App.–Houston [14th Dist] July 11, 2013, order) (reinstating

appeal after dismissal for failing to file clerk’s record and pay filing fee) (attached

as Tab 1); Jefferson v. Unity Nat’l Bank, No. 14-14-00197-CV (Tex. App.–

Houston [14th Dist.] May 29, 2014, order) (reinstating appeal following dismissal

for failing to pay for and file the clerk’s record) (attached as Tab 2); Arnold

v.Federal Nat’l Mortgage Ass’n, No. 14-13-00418-CV (Tex. App.–Houston [14th

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Dist.] August 16, 2013, order) (reinstating appeal after dismissal for failing to pay

filing fee and even though reporter’s fee had not been paid) (attached as Tab 3).

10. Thus, it is proper and consistent with established precedent for the Court to

reinstate the case and allow Grantham a reasonable amount of time to pay for and

file the record. This case should be “decided on the merits instead of on procedural

grounds.” John Hill Cayce, Jr., et al., Civil Appeals in Texas: Practicing Under the

New Rules of Appellate Procedure, 49 BAYLOR L.REV. 867, 873 (1997).

FOR THESE REASONS, Grantham respectfully requests that the Court

grant rehearing, reinstate the case, and allow him a reasonable time to pay for and

file the record.

Respectfully Submitted,

THE MCCLEERY LAW FIRM

//S//Stephen E. McCleery
Stephen E. McCleery
State Bar of Texas No. 00794258
Federal Id. No. 21007
5020 Montrose, Blvd., 6th Floor
Houston, Texas 77006
Telephone 713/622-3555
Facsimile 713/224-8555
E-Mail smccleery@mccleerylaw.com

ATTORNEY FOR APPELLANT
GUY GRANTHAM

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 CERTIFICATE OF SERVICE

The below signed certifies that on this the 30th day of July 2015, the above
document was served, pursuant to TEX. R. CIV. P. 21, on the last known attorney of
record for all Appellees via electronic service.

//S//Stephen E. McCleery
The McCleery Law Firm

VIA ELECTRONIC SERVICE

Mr. R. Chris Day
Law Offices of Day & Wallace
517 East Commerce Street
Jacksonville, Texas 75766

ATTORNEYS FOR PLAINTIFF/COUNTER-DEFENDANT
RACEFAB, INC./THIRD-PARTY DEFENDANTS

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APPENDIX TAB 1
Motion for Rehearing Granted; Memorandum Opinion issued April 18, 2013,
Withdrawn and Dismissal Judgment Vacated; Appeal Reinstated; Order filed
June 11, 2013.

In The

Fourteenth Court of Appeals
____________

NO. 14-13-00079-CV
____________

MONICA J. GRAHAM, Appellant

V.

AMEGY BANK NATIONAL ASSOCIATION, Appellee

On Appeal from the County Civil Court at Law No. 3
Harris County, Texas
Trial Court Cause No. 979389

ORDER
On April 18, 2013, this court dismissed this appeal for want of prosecution
because appellant had not paid for preparation of the clerk’s record. See Tex. R.
App. P. 37.3(b). Appellant had also failed to pay the appellate filing fee. See Tex.
R. App. P. 5. On May 2, 2013, appellant filed a motion for rehearing, stating that
payment had been made and asking the court to reinstate the appeal. The clerk’s
record was filed May 2, 2013. The appellate filing fee was paid on May 7, 2013.
On May 6, 2013, the court requested a response to appellant’s motion for
rehearing. See Tex. R. App. P. 49.2. No response was filed.

Accordingly, we GRANT appellant’s motion for rehearing. This court’s
memorandum opinion issued April 18, 2013, is WITHDRAWN, the April 18,
2013, dismissal judgment is VACATED, and the appeal is ordered
REINSTATED.

Appellant’s brief shall be due on or before July 11, 2013.

PER CURIAM

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APPENDIX TAB 2
Motion to Reinstate Granted, Memorandum Opinion filed May 8, 2014,
Withdrawn, Appeal Reinstated, and Order filed May 29, 2014.

In The

Fourteenth Court of Appeals
____________

NO. 14-14-00197-CV
____________

AUBREY R. JEFFERSON, Appellant

V.

UNITY NATIONAL BANK, Appellee

On Appeal from the County Civil Court at Law No. 2
Harris County, Texas
Trial Court Cause No. 1004469

ORDER

On May 8, 2014, this court issued an opinion dismissing this appeal for want
of prosecution for failure to make arrangements to pay for the clerk’s record. On
May 14, 2014, appellant filed a motion to reinstate the appeal on the grounds that
he has made arrangements to pay for the record. The motion is GRANTED.

This court’s opinion filed May 8, 2014, is WITHDRAWN, and our
judgment of that date is VACATED. The appeal is ordered REINSTATED.
 The clerk’s record, filed May 14, 2014, reflects that appellant’s motion for
reconsideration in the trial court was not timely filed; therefore, the notice of
appeal is untimely. The court will consider dismissal of the appeal on its own
motion for want of jurisdiction unless any party files a response on or before June
10, 2014, showing meritorious grounds for continuing the appeal.

PER CURIAM

Panel consists of Justices Christopher, Jamison, and McCally.
APPENDIX TAB 3
Motion for Rehearing Granted; Memorandum Opinion Withdrawn,
Reinstated; Order filed August 16, 2013.

In The

Fourteenth Court of Appeals
____________

NO. 14-13-00418-CV
____________

WARD ARNOLD, Appellant

V.

FEDERAL NATIONAL MORTGAGE ASSOCIATION
A/K/A FANNIE MAE, Appellee

On Appeal from the County Court at Law No 2
Galveston County, Texas
Trial Court Cause No. CV-0069239

ORDER

On July 18, 2013, this court dismissed this appeal because
appellant had not paid the appellate filing fee and did not respond to this
court’s notices and order. See Tex. R. App. P. 42.3(c) (allowing
involuntary dismissal of case because appellant has failed to comply
with a court order).

On July 19, 2013, appellant paid the fee and filed a motion for
rehearing asking that we reinstate the appeal. Appellee filed a response
in opposition to the motion.

Because the filing fee has now been paid, we GRANT the motion
for rehearing, order our opinion of July 18, 2013, WITHDRAWN, our
judgment of that date VACATED, and the appeal REINSTATED.

The reporter’s record has not been filed in this appeal. On June 24,
2013, the court reporter, Jana Fowler, advised this court that appellant
had not paid for preparation of the record. Unless appellant pays for
preparation of the record and provides this court with proof of payment
on or before September 3, 2013, the court will order appellant to file a
brief without the record. See Tex. R. App. P. 37.3(b).

PER CURIAM

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