ACCEPTED
04-15-00548-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
9/28/2015 4:22:17 PM
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 TEXAS9/28/2015 4:22:17 PM
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 NOTICE OF COURT TO
ABATE THE APPELLATE PROCEDURE ON THIS CASE
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. In a misguided attempt to avoid dismissal of her time-barred appeal,
Plaintiff-Appellant Rufina Reyes Yanez filed a “Notice of Court to Abate the
Appellate Procedure on This Case” (the “Notice”). The Notice is not really a
notice, but a disguised motion1 seeking an order abating these proceedings for an
indefinite period. The Court should deny the relief sought in the Notice because it
lacks jurisdiction to hear this appeal.
II. Procedural History.
2. The trial court granted summary judgment in favor of Appellee
American General Life Insurance Company on May 13, 2015 (the “Judgment,”
attached as Exhibit 1). Pursuant to the Judgment, all of Appellant’s claims were
dismissed with prejudice. Judgment, ¶ 3. The Judgment further provides that it “is
a final order that dispenses with all claims before the Court.” Id.
3. Appellant filed her “Motion to Set Aside the May 13, 2015 Order
Granting Defendant’s Traditional Motion for Summary Judgment” on June 5, 2012
(“Motion to Set Aside,” attached as Exhibit 2). This was clearly a motion for a
new trial, as Plaintiff expressly argued that she was “entitled to a new trial because
the May 13, 2015, order deprived her of her claim for relief regarding conversion.”
1
The Notice did not contain a certificate of conference, which is required of all motions pursuant
to Rule 10.1(a)(5) of the Texas Rules of Appellate Procedure. Appellant cannot escape this
requirement by naming her filing a “notice” as opposed to a “motion.” Appellee objects to the
Notice because of this deficiency.
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Id., ¶ 16. In her prayer, “Plaintiff ask[ed] the Court to set a hearing on her motion
for new trial and enter a written order within 75 days of May 13, 2015, setting
aside the order granting [Appellee]’s motion for a final summary judgment.” Id., ¶
19.
4. On June 12, 2015, Appellant filed three separate supplements to the
Motion to Set Aside, entitled as follows:
a. “Supplemental Plaintiff’s Motion to Set Aside the May 13, 2015,
Order Granting Defendant’s Traditional Motion for Summary
Judgment and in the Alternative Motion for New Trial” (attached as
Exhibit 3).
b. “Plaintiff’s Supplement to Her Motion to Set Aside the May 13, 2015,
Summary Judgment” (attached as Exhibit 4).
c. “Second Supplement to Plaintiff’s Motion for New Trial” (attached as
Exhibit 5).
5. The trial court denied the Motion to Set Aside “in its entirety” on July
20, 2015 (the “July 20 Order,” attached as Exhibit 6). Appellant filed her Notice
of Appeal on September 3, 2015.
III. Legal Argument.
6. Appellant argues that the Court should abate this appeal because the
July 20 Order “did not address [her] Motion for New Trial.” See Notice, ¶ 2.
Appellant makes the strained argument that because she did not file a document
with the phrase “Motion for New Trial” in the title until after filing the Motion to
Set Aside, the trial court did not address her request for a new trial in the July 20
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Order. As a result, argues Appellant, her appeal is premature and should be abated
because the trial court has not yet ruled on a pending motion. This is nonsense.
7. A plain reading of the Motion to Set Aside reveals that Appellant
clearly moved the trial court for a new trial.2 The three documents she filed on
June 12, 2015 were supplements to the Motion to Set Aside, not separate and
distinct motions. Battin v. Samaniego, 23 S.W.3d 183, 185 (Tex. App.—El Paso
2000, pet. denied) (“An amended motion supercedes the original motion; a
supplemental motion is considered in addition to an original motion.”) (citing TEX.
R. CIV. P. 69). As such, there was only one motion before the trial court when it
issued the July 20 Order, and that motion included Appellant’s request for a new
trial.
8. The July 20 Order denied the Motion to Set Aside “in its entirety,”
and along with it all of Appellant’s requests for a new trial. There is nothing left
for which the trial court must still issue a ruling. Appellant’s Notice has no basis
in law or fact.
9. Even if the trial court had not yet issued a ruling on some pending
request for a new trial, Appellant’s Notice of Appeal was still untimely because the
filing deadline is not determined by reference to a ruling on a motion for new trial.
Pursuant to Rule 26.1(a) of the Texas Rules of Appellate Procedure, “the notice of
2
See Surgitek, Bristol-Myers Corp. v. Abel, 997 S.W.2d 598, 601 (Tex. 1999) (“[Courts] look to
the substance of a motion to determine the relief sought, not merely to its title.”).
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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). 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.” 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.).
10. Here, the Judgment was signed on May 13, 2015. Accordingly,
Appellant only had until August 11, 2015 to file her Notice of Appeal (90 days
after the Judgment). She did not do so until September 3, 2015. As a result, the
Court lacks jurisdiction for this matter and should dismiss, not abate, this appeal as
a matter of law.
IV. Conclusion.
For the reasons set forth herein and in Appellee’s Motion to Dismiss, the
Court should deny the request for relief in Appellant’s Notice and dismiss this
appeal for want of jurisdiction.
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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
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been served
on the 28th day of September, 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
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CERTIFICATE OF COMPLIANCE
Per Texas Rule of Appellate Procedure 9.4(i), I hereby certify that this
document has 954 words, as calculated by Microsoft Word, the word processing
software used to create the document.
a
Jason A. Richardson
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