Brigetta D'Olivio A/K/A Brigetta Alix Anderson, Alix Brigetta v. Hilary Thompson Hutson

Opinion

Order entered February 12, 2021

In The Court of Appeals Fifth District of Texas at Dallas

No. 05-20-00969-CV

BRIGETTA D'OLIVIO A/K/A BRIGETTA ALIX ANDERSON, ALIX BRIGETTA, Appellant

V.

HILARY THOMPSON HUTSON, Appellee

On Appeal from the 296th Judicial District Court Collin County, Texas Trial Court Cause No. 296-04855-2019

ORDER

This is an appeal from the trial court’s August 11, 2020 final order and

judgment. Appellant filed a motion for new trial that was date-stamped September

14, 2020 and the notice of appeal November 9, 2020. Because the motion for new

trial appeared to have been filed outside the allowable thirty-day period, see TEX.

R. CIV. P. 329b(a), it appeared the deadline for filing the notice of appeal was

September 10, 2020 and not November 9th when it was filed, see TEX. R. APP. P.

26.1, 26.1(a). We questioned our jurisdiction over the appeal based on timeliness and directed the parties to file letter briefs addressing our concern. See Brashear v.

Victoria Gardens of McKinney, L.L.C., 302 S.W.3d 542, 545 (Tex. App.—Dallas

2009, no pet.) (op. on reh’g) (timely filing of notice of appeal is jurisdictional).

Separately, appellee challenged our jurisdiction by motion to dismiss. Appellee

asserted we lacked jurisdiction because appellant did not pay the required filing fee

for the motion for new trial at the time the motion was filed but waited until

November 10th. Appellee contended that without the concurrent payment, the

motion for new trial could not extend the deadline for filing the notice of appeal to

November 9th, and the notice of appeal was therefore untimely. Additionally,

appellee argued the appeal should be dismissed for want of prosecution because

appellant delayed paying the fee for the clerk’s record based on a dispute over the

amount. Appellant has filed a response to appellee’s motion, and appellee has filed

a reply; both parties have filed the requested jurisdictional letter briefs. We

address our and appellee’s concerns in turn.

As to the timeliness of appellant’s motion for new trial, appellant noted in

her letter brief that she mailed the new trial motion on September 9th and attached

proof of the date of mailing in support. Under Texas Rule of Civil Procedure 5,

the motion, received within ten days of the September 10th deadline, is considered

timely filed. See TEX. R. CIV. P. 5. As to appellant’s failure to pay the required motion fee, we note that a

motion for new trial is conditionally filed, and extends the appellate deadlines,

when presented to the trial court clerk even if it is tendered without the requisite

fee. See Garza v. Garcia, 137 S.W.3d 36, 38 (Tex. 2004). Accordingly, the motion

for new trial extended the appellate deadlines, and the notice of appeal is timely.

We DENY appellee’s motion to dismiss to the extent it argues the notice of

appeal is untimely. We further DENY appellee’s motion to dismiss to the extent it

argues appellant has failed to prosecute the appeal.

We note we suspended the deadline for the filing of the reporter’s record

pending determination of our jurisdiction over the appeal. Having concluded we

have jurisdiction over the appeal, we ORDER Janet L. Dugger, Official Court

Reporter for the 296th Judicial District Court, to file the record no later than March

3, 2021.

We DIRECT the Clerk of the Court to send a copy of this order to Ms.

Dugger and the parties.

/s/ KEN MOLBERG JUSTICE