Franco Gamboa v. Lizette Noemi Alecio

Court of Appeals of Texas

Franco Gamboa v. Lizette Noemi Alecio

DecidedMay 23, 2019

Docket14-19-00056-CV

StatusPublished

This text of Franco Gamboa v. Lizette Noemi Alecio (Franco Gamboa v. Lizette Noemi Alecio) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Franco Gamboa v. Lizette Noemi Alecio, (Tex. Ct. App. 2019).

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Opinion

Appeal Reinstated, Motions Disposed, and Order filed May 23, 2019

In The

Fourteenth Court of Appeals ____________

NO. 14-19-00056-CV ____________

FRANCO GAMBOA, Appellant

V.

LIZETTE NOEMI ALECIO, Appellee

On Appeal from the 310th District Court Harris County, Texas Trial Court Cause No. 2018-26302

ABATEMENT ORDER

This appeal is from a judgment signed October 17, 2018. The notice of appeal indicates it was deposited in the prison mail on January 7, 2019. The district clerk filed the notice of appeal on January 16, 2019. On February 21, 2019, we abated this appeal for the trial court to determine when appellant first either received notice or acquired actual knowledge that the judgment was signed. The trial court signed an order finding that appellant acquired actual knowledge of the judgment on January 7, 2019. That order has been filed in a supplemental clerk’s record.

While the case was abated, appellant, who is proceeding pro se, filed two motions. On April 1, he moved to extend time to file his brief. On April 29, he moved to dismiss his appeal. The motion to dismiss states in relevant part:

[Appellant] has already filed a motion to have the court demonstrate actual notice was given and if not to re-open the time for filing notice of appeal. As such this appeal is without jurisdiction and [appellant] asks that the court dismiss without prejudice pending refiling. We may not dismiss an appeal “without prejudice to refiling.” Voluntary dismissal under Texas Rule of Appellate Procedure 42.1 is final. Given that appellant filed a motion to extend time to file his brief, we believe appellant did not understand that dismissal would be with prejudice.

Accordingly, we REINSTATE the appeal, GRANT appellant’s motion to extend time to file his brief, and DENY his motion to dismiss. If appellant desires to have his appeal finally and permanently dismissed, he may file another motion to dismiss.

Subject to any extensions he may be granted, appellant’s brief is due 30 days from the date of this order.

PER CURIAM

Panel consists of Justices Christopher, Hassan, and Poissant.

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Appeal Reinstated, Motions Disposed, and Order filed May 23, 2019

In The

Fourteenth Court of Appeals ____________

NO. 14-19-00056-CV ____________

FRANCO GAMBOA, Appellant

V.

LIZETTE NOEMI ALECIO, Appellee

On Appeal from the 310th District Court Harris County, Texas Trial Court Cause No. 2018-26302

ABATEMENT ORDER

This appeal is from a judgment signed October 17, 2018. The notice of appeal indicates it was deposited in the prison mail on January 7, 2019. The district clerk filed the notice of appeal on January 16, 2019. On February 21, 2019, we abated this appeal for the trial court to determine when appellant first either received notice or acquired actual knowledge that the judgment was signed. The trial court signed an order finding that appellant acquired actual knowledge of the judgment on January 7, 2019. That order has been filed in a supplemental clerk’s record.

While the case was abated, appellant, who is proceeding pro se, filed two motions. On April 1, he moved to extend time to file his brief. On April 29, he moved to dismiss his appeal. The motion to dismiss states in relevant part:

[Appellant] has already filed a motion to have the court demonstrate actual notice was given and if not to re-open the time for filing notice of appeal. As such this appeal is without jurisdiction and [appellant] asks that the court dismiss without prejudice pending refiling. We may not dismiss an appeal “without prejudice to refiling.” Voluntary dismissal under Texas Rule of Appellate Procedure 42.1 is final. Given that appellant filed a motion to extend time to file his brief, we believe appellant did not understand that dismissal would be with prejudice.

Accordingly, we REINSTATE the appeal, GRANT appellant’s motion to extend time to file his brief, and DENY his motion to dismiss. If appellant desires to have his appeal finally and permanently dismissed, he may file another motion to dismiss.

Subject to any extensions he may be granted, appellant’s brief is due 30 days from the date of this order.

PER CURIAM

Panel consists of Justices Christopher, Hassan, and Poissant.

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Franco Gamboa v. Lizette Noemi Alecio, Counsel Stack Legal Research, https://law.counselstack.com/opinion/franco-gamboa-v-lizette-noemi-alecio-texapp-2019.