Rosa Serrano D/B/A the Lens Factory v. City Bank and Old Republic National Title Insurance Company

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

§
ROSA SERRANO D/B/A No. 08-15-00044-CV
THE LENS FACTORY, §
Appeal from
Appellant, §
County Court at Law No. 7
v. §
of El Paso County, Texas
CITY BANK AND OLD REPUBLIC §
NATIONAL TITLE INSURANCE (TC # 2015-DCV-1079/2013-DCV-3139)
COMPANY, §

Appellees. §

OPINION

This appeal is before the Court on its own motion to determine whether it should be

dismissed for want of prosecution. Finding that Appellant, Rosa Serrano d/b/a The Lens

Factory, has failed to file her brief, we dismiss the appeal for want of prosecution.

This is an appeal from the trial court’s orders finding Serrano to be a vexatious litigant.

On August 25, 2016, the Court issued its opinion holding that Serrano was not entitled to a new

trial due to the loss of the court reporter’s notes because Serrano had failed to show that she was

not at fault. See Serrano v. City Bank and Old Republic National Title Insurance Company,

No. 08-15-00044-CV, 2016 WL 4483249 (Tex.App.--El Paso August 25, 2016, opinion on

motion). Consequently, we ordered that the appeal would be considered without the reporter’s
record. Id., 2016 WL 4483249 at *4. Serrano’s brief was due to be filed thirty days later,

September 24, 2016.

On September 28, 2016, Serrano filed an extension motion asking for ninety days in

which to file her brief. An appellate court has authority to extend the time for filing the brief

provided that the party files a motion complying with Rule 10.5(b). See TEX.R.APP.P. 10.5(b),

38.6(d). Among other things, the motion must state “the facts relied on to reasonably explain

the need for an extension.” TEX.R.APP.P. 10.5(b)(1)(C). In her unsworn motion, Serrano stated

that she had suffered a “relapse” on September 15, 2016, and she was not released from the

hospital until September 16, 2016. She also stated: “The relapse is debilitating and it takes

almost 30 to 45 days to recover.” Serrano asked for an extension of ninety days so that she could

receive “additional care.”

Old Republic National Title Insurance Company and City Bank filed responses objecting

to the motion and challenging the factual basis for the extension request. Among other things,

Old Republic and City Bank showed that Serrano sent an email to counsel on September 15,

2016 at 5:38 p.m. stating that she had begun changing the locks on the property involved in the

underlying case. Old Republic also attached an email from Burton Cohen, counsel for Pellicano

Park, LLC, and a motion for contempt filed by Pellicano Park on September 19, 2016, asserting

that Serrano had changed the locks on the property located at 11500 Pellicano Drive in El Paso

in violation of the final judgment entered by the court on September 15, 2016. City Bank’s

response also includes evidence showing that Serrano filed a 48-page motion to reconsider in the

United States District Court for the Western District of Texas 1 on September 20, 2016. In a

1
The case is styled Rosa Serrano v. El Paso County Jail Sheriff Richard Wiles and the Honorable Virgin Mulanax
(cause number EP-16-CV-l90DCG).

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different federal case, she also filed a 36-page motion to issue summons on September 23, 2016,

and a 68-page motion for new trial on September 27, 2016.2

Serrano did not file any reply to the responses of Old Republic and City Bank. After

reviewing the motion and the responses, the Court denied Serrano’s extension request on

October 4, 2016. Since that date, Serrano has filed a motion to recuse in this Court, and she has

provided the Court with courtesy copies of motions she has filed in the Texas Supreme Court

related to this appeal.

An appellate court is authorized to dismiss an appeal for want of prosecution when the

appellant fails to file her brief by the deadline and gives no reasonable explanation for such

failure. TEX.R.APP.P. 38.8(a)(1); Elizondo v. City of San Antonio, 975 S.W.2d 61, 63 (Tex.App.-

-San Antonio 1998, no writ). Serrano filed an extension motion, but the explanation she

provided is not reasonable because it is contradicted by evidence presented in the responses of

Old Republic and City Bank. Accordingly, we dismiss the appeal for want of prosecution. See

TEX.R.APP.P. 38.8(a)(1), 42.3(b). All pending motions are denied as moot.

October 27, 2016
ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.
Hughes, J., not participating

2
The case is style Rosa Serrano v. El Paso County Court at Law Number Seven (Honorable Virgil Mulanax),
Pellicano Business Park, L.L.C., Texas Corporation, Pellicano Plaza Warehouse Owner’s Association, Summit
Mountain, Inc., Lone Star Title Company, and Old Republic National Title Insurance, City Bank, Texas, Honorable
Linda Chew, Deputy Robinson (Sheriff’s Deputy), and Ms. Norma L. Favela (District Clerk)(cause number EP-16-
CV-0203-DB).

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