Greg Chambers and Trina Bradley v. Eusebio Maldonado

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-12-00480-CV

Greg CHAMBERS and Trina Bradley, Appellants

v.

Eusebio MALDONADO, Appellee

From the 367th Judicial District Court, Denton County, Texas Trial Court No. 2010-50194-367 Honorable Jonathan Mark Bailey, Judge Presiding

Sitting: Catherine Stone, Chief Justice Karen Angelini, Justice Rebeca C. Martinez, Justice

Delivered and Filed: May 8, 2013

DISMISSED FOR LACK OF JURISDICTION

The trial court signed a dismissal order on April 18, 2012. On May 14, 2012, appellants

filed an unverified motion to reinstate. Although a verified motion to reinstate extends the time

for perfecting an appeal, an unverified motion to reinstate does not extend the deadline.

McConnell v. May, 800 S.W.2d 194, 194 (Tex. 1990) (per curiam); Butts v. Capitol City Nursing

Home, Inc., 705 S.W.2d 696, 697 (Tex. 1986) (per curiam); In re Valliance Bank, No. 02-12-

00255-CV, 2012 WL 5512455, at *2 (Tex. App.—Fort Worth Nov. 15, 2012, orig. proceeding).

In Guest v. Dixon, 195 S.W.3d 687, 688 (Tex. 2006), the Texas Supreme Court acknowledged its 04-12-00480-CV

holdings in McConnell and Butts, but asserted “Since those cases we have repeatedly stressed

that procedural rules should be construed and applied so that the right of appeal is not

unnecessarily lost to technicalities.” “Although the supreme court admonished in Guest and has

continued to stress that courts should strive to reach the merits of cases when reasonably possible

and that litigants’ rights (whether of appeal or of a day in court) should not be lost based upon

procedural technicalities, that line of cases has not overruled McConnell or Butts, and we remain

bound by those decisions.” In re Valliance Bank, 2012 WL 5512455, at *4.

Because the appellants’ unverified motion to reinstate did not extend the deadline for

perfecting the appeal, the notice of appeal was due to be filed on May 18, 2012. See TEX. R.

APP. P. 26.1(a). Appellants did not file their notice of appeal until July 17, 2012. On July 25,

2012, appellants filed a second motion to reinstate, requesting the trial court to treat its prior

motion to reinstate as a motion for new trial. This same argument was made to the intermediate

appellate court in Butts, 700 S.W.2d 628, 630 (Tex. App.—Austin 1985), writ ref’d n.r.e., 705

S.W.2d 696 (Tex. 1986). That court rejected the argument, asserting, “Without treating every

motion to reinstate as a motion for new trial, it is difficult to see how the motion in question

could be other than a motion to reinstate.” Id. In refusing the application for writ of error, the

Texas Supreme Court agreed that “no proper motion was filed with the court” to extend the

deadline for perfecting the appeal. Butts, 705 S.W.2d at 697.

A motion for extension of time is necessarily implied when an appellant, acting in good

faith, files a notice of appeal beyond the time allowed by Rule 26.1 but within the fifteen-day

grace period provided by Rule 26.3 for filing a motion for extension of time. See Verburgt v.

Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (construing the predecessor to Rule 26). But “once

the period for granting a motion for extension of time under Rule [26.3] has passed, a party can

no longer invoke the appellate court’s jurisdiction.” Id. -2- 04-12-00480-CV

On April 2, 2013, we ordered appellants to show cause in writing within fifteen days

from the date of our order why this appeal should not be dismissed for lack of jurisdiction.

Appellants did not respond to our order. Because the notice of appeal was untimely filed, this

appeal is dismissed for lack of jurisdiction. Costs of the appeal are taxed against appellants.

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