ACCEPTED
04-15-00548-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
11/24/2015 9:44:54 AM
KEITH HOTTLE
CLERK
NO. 04-15-00548-CV
FILED IN
4th COURT OF APPEALS
IN THE COURT OF APPEALS SAN ANTONIO, TEXAS
FOR THE FOURTH DISTRICT OF TEXAS11/24/2015 9:44:54 AM
SAN ANTONIO KEITH E. HOTTLE
Clerk
RUFINA REYES YANEZ
Appellant,
v.
AMERICAN GENERAL LIFE INSURANCE CO.
Appellee.
ON APPEAL FROM THE 341ST JUDICIAL DISTRICT COURT OF WEBB COUNTY, TEXAS
Trial Court Cause No. 2014CVF000504 D3
APPELLEE’S RESPONSE TO APPELLANT’S
MOTION TO REINSTATE APPEAL
David T. McDowell EDISON, MCDOWELL & HETHERINGTON LLP
State Bar No. 00791222 Phoenix Tower
Jason A. Richardson 3200 Southwest Freeway, Ste. 2100
State Bar No. 24056206 Houston, Texas 77027
Robert P. Debelak III Telephone: 713-337-5580
State Bar No. 24078410 Facsimile: 713-337-8850
david.mcdowell@emhllp.com
jason.richardson@emhllp.com
bobby.debelak@emhllp.com
Counsel for Appellee
I. Introduction.
1. The Court lacks jurisdiction to hear this appeal because Appellant
filed her notice of appeal long after it was due. The trial court’s summary
judgment was issued on May 13, 2015 – not on July 20, 2015, as Appellant has
falsely represented numerous times since the inception of this appeal. Appellant
only had until August 11, 2015 to file her Notice of Appeal. She did not do so
until September 3, 2015, and therefore failed to invoke this Court’s jurisdiction and
thus Appellant’s Motion to Reinstate Appeal (the “Motion”) must fail.
2. Further, Appellant never timely filed a motion for an extension or a
response to American General’s motion to dismiss. The Court provided Appellant
with every opportunity to show cause as to why her appeal should not be
dismissed, and she refused to file anything. The Court properly dismissed this
appeal on October 28, 2015. The Motion was, not surprisingly, filed after the
deadline to seek a rehearing, and lacks any supporting authority. The Court should
deny the Motion.
II. The Court Lacks Jurisdiction to Hear or Reinstate This Appeal.
3. The Court should deny the Motion because it lacks jurisdiction over
this appeal. Appellant failed to file a timely notice of appeal, and thus failed to
invoke the Court’s jurisdiction. Any attempt to reinstate the appeal is futile.
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4. Contrary to Appellant’s allegations, the trial court’s summary
judgment was issued on May 13, 2015 – not July 20, 2015 (the “Judgment” is
attached as Exhibit 1). Pursuant to the Judgment, all of Appellant’s claims were
dismissed with prejudice. Judgment, ¶ 3. The Judgment states that it “is a final
order that dispenses with all claims before the Court.” Id.
5. Appellant filed her “Motion to Set Aside the May 13, 2015 Order
Granting Defendant’s Traditional Motion for Summary Judgment” on June 5, 2012
(the “Motion for New Trial,” attached as Exhibit 2). That motion was denied on
July 20, 2015 (the “July 20 Order,” attached as Exhibit 3).
6. Appellant filed her Notice of Appeal on September 3, 2015 (attached
as Exhibit 4). On that same day, she also (belatedly) filed a Motion for Extension
of Time to File Appellant’s Brief, seeking a 15-day extension to file her Notice of
Appeal.1
7. In Texas, a court of appeals only “has jurisdiction over an appeal if
the appellant timely files an instrument in a bona fide attempt to invoke the
appellate court’s jurisdiction. In re K.A.F., 160 S.W.3d 923, 927 (Tex. 2005). If
an appellant fails to file a timely notice of appeal, she will not invoke the court’s
appellate jurisdiction. Ex parte Matthews, 452 S.W.3d 8, 14 (Tex. App.—San
Antonio 2014, no pet.). Further, “[w]hen a notice of appeal is filed late and
1
The title of Appellant’s motion is obviously erroneous.
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appellant fails to timely file a motion for extension of time, the appellate court
lacks jurisdiction.” Torres v. State, 04-03-00913-CR, 2004 WL 572346, at *1
(Tex. App.—San Antonio Mar. 24, 2004, no pet.).
8. Appellant’s Notice of Appeal is impermissibly late. Pursuant to Rule
26.1(a) of the Texas Rules of Appellate Procedure, “the notice of appeal must be
filed within 90 days after judgment is signed if any party timely files … a motion
for new trial. TEX. R. APP. P. 26(a)(1) (emphasis added). Because the Judgment
was signed on May 13, 2015, Appellant only had until August 11, 2015 to file her
Notice of Appeal. She did not do so until September 3, 2015. Appellant failed to
invoke the Court’s jurisdiction.
9. Since filing her Notice of Appeal, Appellant has attempted to create
the illusion of a timely filed appeal by purporting to appeal the wrong trial court
order. Here, Appellant states that she desires to appeal “the final summary
judgment that was rendered on July 20, 2015.” See Notice of Appeal (Exh. 4).
Her characterization of the July 20 Order is incorrect and misleading.
10. The May 13, 2015 Judgment – which granted summary judgment in
American General’s favor – was the only final, appealable trial court order that
could trigger the appellate deadlines. See Judgment. The July 20 Order was an
interlocutory order that merely denied Appellant’s Motion for New Trial, and did
not deny any of Appellant’s claims. See July 20 Order. Sechrest v. Blackwell, No.
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11-11-00271-CV, 2012 WL 690222, at *2 (Tex. App.—Eastland Mar. 1, 2012, no
pet.) (“The May 26 written order denies a motion for new trial and is, therefore,
not a final judgment or an appealable order.”). It is well settled in Texas that an
order denying a motion for a new trial has no effect on an appellant’s deadline
to file a notice of appeal. Powell v. Linh Nutrition Programs, Inc., 01-03-00919-
CV, 2005 WL 375334, at *1 (Tex. App.—Houston [1st Dist.] Feb. 17, 2005, no
pet.) (“the deadline for filing her notice of appeal does not run from the date of the
denial of her motion for new trial, but rather from the date of the signing of the
summary judgment granted for appellees.”); Burnett v. DRO IP, Ltd., 13-14-
00518-CV, 2014 WL 4952767, at *1 (Tex. App.—Corpus Christi Oct. 2, 2014, no
pet.) (“the deadline for filing the notice of appeal does not run from the date of the
denial of the motion for new trial, but rather from the date of the judgment.”); J.E.
Shaunfield Family Ltd. P'ship v. BMW of Dallas, 05-12-00880-CV, 2012 WL
4753523, at *1 (Tex. App.—Dallas Oct. 4, 2012, no pet.) (same).
11. Appellant failed to invoke this Court’s jurisdiction because she failed
to timely file her Notice of Appeal. Her Motion to Reinstate Appeal should be
denied for the same reasons: it is moot, untimely and futile.
III. Appellant’s Motion is Late and Not Supported By Any Authority.
12. In the event that a party disagrees with an appellate court’s judgment
or order, the Texas Rules of Appellate Procedure permit a party to file a motion for
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rehearing “within 15 days after the court of appeals’ judgment or order is
rendered.” TEX. R. APP. P. 49.1. Here, the Court’s judgment was rendered on
October 28, 2015, meaning that any motion for rehearing had to be filed by
November 12, 2015. Appellant missed this deadline, so she filed her motion to
reinstate appeal on November 13th. Not only did she file the wrong type of motion,
she filed it too late.
13. In any event, the motion has no valid supporting authority. Appellant
bewilderingly argues that her motion is permitted under Rule 25.1(g), which
provides:
Amending the Notice. An amended notice of appeal correcting a
defect or omission in an earlier filed notice may be filed in the
appellate court at any time before the appellant’s brief is filed. The
amended notice is subject to being struck for cause on the motion of
any party affected by the amended notice. After the appellant’s brief is
filed, the notice may be amended only on leave of the appellate court
and on such terms as the court may prescribe.
TEX. R. APP. P. 25.1(g). This rule is inapplicable here and Appellant’s reliance on
it makes no sense. Appellant has not made any attempt to amend her notice of
appeal. This rule is simply inapplicable and does not provide a basis for reinstating
her appeal.
14. The cases cited in Appellant’s motion actually support American
General’s opposition. In Sweed v. Nye, the Texas Supreme Court held that a
defective notice of appeal could be amended only if it was timely filed. 323
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S.W.3d 873, 874 (Tex. 2010). In Warwick Towers Council of Co-Owners v. Park
Warwick, LP, the same court held that an appellant’s right to cure defects in a
notice of appeal is entirely dependent upon it being timely filed. 244 S.W.3d 838,
839 (Tex. 2008). Because Appellant’s Notice of Appeal was not timely filed, she
is not entitled to amend it or otherwise take any other action on her appeal.
IV. There is No Good Cause to Reinstate the Appeal.
15. Appellant argues that the Court should reinstate this appeal because
(a) her counsel and his assistant have recently been out sick, (b) her counsel has
been busy attending to more important cases in litigation, and (c) the appeal is
purportedly meritorious. See Motion to Reinstate Appeal, at ¶¶ 3-5. None of these
reasons amount to good cause sufficient to reinstate this appeal.
16. American General certainly would have been willing to agree to
deadline extensions if Appellant’s counsel’s health concerns rendered him unable
to make timely filings, but no such extension requests were ever made. Next,
while counsel’s other cases may have required much time and attention, American
General should not be forced to bear the cost and expense of dealing with a
properly dismissed appeal just because Appellant’s counsel chose not to make this
case a priority. Moreover, this Court specifically ordered Appellant to show cause
by a date certain as to why her appeal should not be dismissed. Even with a busy
schedule, Appellant’s counsel could have either found time to comply with the
EMH514873 7
Court’s order himself or seek assistance or an extension. Like any litigant, one
who ignores a court order does so at its own peril. Appellant is no exception.
17. Regardless of Appellant’s opinion as to the merits of her appeal, it
was properly dismissed. The appeal should not be reinstated because the Court
lacks jurisdiction, and nothing in any of Appellant’s filings can change that. The
Court should deny Appellant’s Motion to Reinstate Appeal.
V. Response to Appellant’s Motion Supplement.
18. Appellant filed a three-paragraph supplement to her motion on
November 18, 2015. The supplement does not address Appellant’s failure to
comply with the Court’s request to show cause for why her appeal should not be
dismissed. Instead, the supplement seems to have been filed for the improper
purpose of providing the Court with select portions of the trial court record for
review.
19. During the trial court proceedings, Appellant filed a “Motion for
Leave to File Relevant Documents and for Judicial Notice” on July 10, 2015 –
nearly two months after the Judgment was entered, and one business day prior
to the hearing on her Motion for New Trial.2 As shown by the docket sheet
attached to Appellant’s supplement, she never actually set the July 10 motion for a
2
Appellant misleadingly refers to this as a “motion for mandatory judicial notice” in the
supplement. See Supplement, ¶ 3. The trial court was not actually required to take judicial
notice of any of the “facts” identified in Appellant’s motion, as explained in American General’s
response brief (attached hereto as Exhibit 5).
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hearing before the Court denied Appellant’s Motion for New Trial on July 20,
2015. In other words, Appellant never properly sought or obtained leave to file
any documents from which the trial court could possibly take judicial notice.
20. None of this has any relevance to the central issue before the Court:
whether Appellant timely filed her Notice of Appeal and invoked the Court’s
jurisdiction. She did not. The Court should disregard the supplement and deny the
motion.
VI. Conclusion.
For the reasons set forth herein, the Court should deny Appellant’s Motion
to Reinstate Appeal.
Respectfully submitted,
EDISON, MCDOWELL & HETHERINGTON LLP
By: a
David T. McDowell
State Bar No. 00791222
Jason A. Richardson
State Bar No. 24056206
Robert P. Debelak III
State Bar No. 24078410
3200 Southwest Freeway, Suite 2100
Houston, Texas 77027
Telephone: 713-337-5580
Facsimile: 713-337-8850
Attorneys for the Appellee
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been served
on the 24th day of November, 2015, on the following counsel of record by US Mail
and email:
Armando Trevino
1519 Washington St., Suite One
Laredo, TX 78042-0544
armando_trevinolaw@hotmail.com
armandotrevinolaw@gmail.com
a
Jason A. Richardson
CERTIFICATE OF COMPLIANCE
Per Texas Rule of Appellate Procedure 9.4(i), I hereby certify that this
document has 1,863 words, as calculated by Microsoft Word, the word processing
software used to create the document.
a
Jason A. Richardson
EMH514873 10