ACCEPTED 12-15-00148-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 7/30/2015 7:23:49 PM CATHY LUSK CLERK
NO. 12-15-00148-CV
*** FILED IN 12th COURT OF APPEALS TYLER, TEXAS IN THE COURT OF APPEALS 7/30/2015 7:23:49 PM CATHY S. LUSK FOR THE TWELFTH JUDICIAL DISTRICT Clerk
TYLER, TEXAS
***
GUY GRANTHAM
Appellant
V.
RACEFAB, INC., ET. AL. Appellees
***
MOTION FOR REHEARING
***
TO THE HONORABLE JUSTICES OF THE COURT:
1. The Court dismissed Grantham’s appeal on July 15, 2015 for failing to make
arrangements for the payment and filing of the clerk’s and reporter’s records.
2. Grantham then filed a motion for an extension of time to file his motion for
rehearing. Grantham asserted that an extension was necessary to allow the
Cherokee County Sherriff execute a writ of execution. Specifically, if it were
determined that Appellees have insufficient assets to satisfy the judgment, 1 Grantham would dismiss the appeal and spare the parties and this Court the time
and expense of this appeal. If there were sufficient assets to satisfy the judgment
sought by Grantham, then he would pay for and file the record.
3. Grantham requested the writ of execution on July 6, 2015. To date, the
Cherokee County Sheriff, without explanation, has not executed the writ.
4. Appellees offered no opposition to Grantham’s motion for extension of time,
which was his first request for an extension of time.
5. This Court denied Grantham’s motion for extension of time on July 30,
2015—the date his rehearing is due.
6. Grantham now files this motion for rehearing and respectfully requests that
the Court reinstate this case.
7. The Supreme Court of Texas has a long–standing and unwavering
commitment to the principle that appellate courts should not dismiss an appeal for
harmless procedural defects. Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex.
1997); Grand Prairie Ind. Sch. Dist. v. Southern Parts Imports, Inc., 813 S.W.2d
499, 500 (Tex. 1991). The Supreme Court has instructed the courts of appeals to
construe the Rules reasonably, yet liberally, so that the right to appeal is not lost by
imposing requirements not absolutely necessary to effect the purpose of the rule.
Id. (citing Jamar v. Patterson, 868 S.W.2d 318, 319 (Tex. 1993)); see also, Crown
Life Ins. Co. v. Estate of Gonzalez, 820 S.W.2d 121, 121 (Tex. 1991) (rules of
2 appellate procedure are to be “liberally construed so that the decisions of the courts
of appeals turn on substance rather than procedural technicality”). In this light, the
Court has consistently held that, “[a]s with any other formal defect or irregularity
in appellate procedure, the court of appeals could dismiss [an] appeal for
noncompliance only after allowing [the party] a reasonable time to correct this
defect.” Higgins v. Randall County Sheriff’s Office, 193 S.W.3d 898, 899 (Tex.
2006); see also, Ex parte F.F.A., 173 S.W.3d 605, 605 (Tex. App.—Waco 2005,
pet. denied) (“before we require payment of applicable filing fees under penalty of
dismissal, F.F.A. should be given a reasonable opportunity to cure his defective
affidavit.”).
8. Here, Grantham made a reasonable request: an extension of time to file his
motion for rehearing (and file the record) if it were determined that Appellees have
sufficient assets to satisfy the judgment Grantham seeks in this appeal. If no such
assets exist, then this appeal could be dismissed because it would be an exercise in
futility. Grantham should be afforded the opportunity to correct this harmless
procedural defect (not timely filing the record) that has no bearing on the merits.
See Verburgt, 959 S.W.2d at 616–17 (“appellate rules [disfavor] disposing of
appeals based upon harmless procedural defects.”); Higgins, 193 S.W.3d at 899
(“As with any other formal defect or irregularity in appellate procedure, the court
of appeals could dismiss the appeal for noncompliance only after allowing [the
3 party] a reasonable time to correct this defect.”); Crown Life Ins., 820 S.W.2d at
121 (“the decisions of the courts of appeals [should] turn on substance rather than
procedural technicality.”).
9. Also, courts of appeals have allowed such harmless procedural deficiencies
be cured on rehearing. See, e.g.,Atkins v. Herrera, No. 10-13-00283-CV (Tex.
App.—Waco Feb. 6, 2014, order) (not designated for publication); Keeter v. State,
No. 10-13-00310-CV (Tex. App.—Waco Mar. 13, 2014, order) (not designated for
publication); Mahuron v. TDCJ, No. 10-14-00116-CV Tex. App.—Waco Aug. 14,
2014, order); see also Reed v. Ford, No. 10-13-00279-CV, 2013 WL 5290112, at
*2, n.2 (Tex. App.—Waco Sept. 19, 2013, no pet.).
9. Further, courts of appeals have reinstated cases following dismissal for
harmless procedural defects. Roger Wu v. Star Houston, Inc., 110 S.W.3d 8, 10–11
(Tex. App.—Waco 2002, no pet.) (reinstating appeal following dismissal for
failing to file clerk’s record); Graham v. Amegy Bank Nat’l Ass’n, No. 14–13–
00079–CV (Tex. App.–Houston [14th Dist] July 11, 2013, order) (reinstating
appeal after dismissal for failing to file clerk’s record and pay filing fee) (attached
as Tab 1); Jefferson v. Unity Nat’l Bank, No. 14-14-00197-CV (Tex. App.–
Houston [14th Dist.] May 29, 2014, order) (reinstating appeal following dismissal
for failing to pay for and file the clerk’s record) (attached as Tab 2); Arnold
v.Federal Nat’l Mortgage Ass’n, No. 14-13-00418-CV (Tex. App.–Houston [14th
4 Dist.] August 16, 2013, order) (reinstating appeal after dismissal for failing to pay
filing fee and even though reporter’s fee had not been paid) (attached as Tab 3).
10. Thus, it is proper and consistent with established precedent for the Court to
reinstate the case and allow Grantham a reasonable amount of time to pay for and
file the record. This case should be “decided on the merits instead of on procedural
grounds.” John Hill Cayce, Jr., et al., Civil Appeals in Texas: Practicing Under the
New Rules of Appellate Procedure, 49 BAYLOR L.REV. 867, 873 (1997).
FOR THESE REASONS, Grantham respectfully requests that the Court
grant rehearing, reinstate the case, and allow him a reasonable time to pay for and
file the record.
Respectfully Submitted,
THE MCCLEERY LAW FIRM
//S//Stephen E. McCleery Stephen E. McCleery State Bar of Texas No. 00794258 Federal Id. No. 21007 5020 Montrose, Blvd., 6th Floor Houston, Texas 77006 Telephone 713/622-3555 Facsimile 713/224-8555 E-Mail smccleery@mccleerylaw.com
ATTORNEY FOR APPELLANT GUY GRANTHAM
5 CERTIFICATE OF SERVICE
The below signed certifies that on this the 30th day of July 2015, the above document was served, pursuant to TEX. R. CIV. P. 21, on the last known attorney of record for all Appellees via electronic service.
//S//Stephen E. McCleery The McCleery Law Firm
VIA ELECTRONIC SERVICE
Mr. R.
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ACCEPTED 12-15-00148-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 7/30/2015 7:23:49 PM CATHY LUSK CLERK
NO. 12-15-00148-CV
*** FILED IN 12th COURT OF APPEALS TYLER, TEXAS IN THE COURT OF APPEALS 7/30/2015 7:23:49 PM CATHY S. LUSK FOR THE TWELFTH JUDICIAL DISTRICT Clerk
TYLER, TEXAS
***
GUY GRANTHAM
Appellant
V.
RACEFAB, INC., ET. AL. Appellees
***
MOTION FOR REHEARING
***
TO THE HONORABLE JUSTICES OF THE COURT:
1. The Court dismissed Grantham’s appeal on July 15, 2015 for failing to make
arrangements for the payment and filing of the clerk’s and reporter’s records.
2. Grantham then filed a motion for an extension of time to file his motion for
rehearing. Grantham asserted that an extension was necessary to allow the
Cherokee County Sherriff execute a writ of execution. Specifically, if it were
determined that Appellees have insufficient assets to satisfy the judgment, 1 Grantham would dismiss the appeal and spare the parties and this Court the time
and expense of this appeal. If there were sufficient assets to satisfy the judgment
sought by Grantham, then he would pay for and file the record.
3. Grantham requested the writ of execution on July 6, 2015. To date, the
Cherokee County Sheriff, without explanation, has not executed the writ.
4. Appellees offered no opposition to Grantham’s motion for extension of time,
which was his first request for an extension of time.
5. This Court denied Grantham’s motion for extension of time on July 30,
2015—the date his rehearing is due.
6. Grantham now files this motion for rehearing and respectfully requests that
the Court reinstate this case.
7. The Supreme Court of Texas has a long–standing and unwavering
commitment to the principle that appellate courts should not dismiss an appeal for
harmless procedural defects. Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex.
1997); Grand Prairie Ind. Sch. Dist. v. Southern Parts Imports, Inc., 813 S.W.2d
499, 500 (Tex. 1991). The Supreme Court has instructed the courts of appeals to
construe the Rules reasonably, yet liberally, so that the right to appeal is not lost by
imposing requirements not absolutely necessary to effect the purpose of the rule.
Id. (citing Jamar v. Patterson, 868 S.W.2d 318, 319 (Tex. 1993)); see also, Crown
Life Ins. Co. v. Estate of Gonzalez, 820 S.W.2d 121, 121 (Tex. 1991) (rules of
2 appellate procedure are to be “liberally construed so that the decisions of the courts
of appeals turn on substance rather than procedural technicality”). In this light, the
Court has consistently held that, “[a]s with any other formal defect or irregularity
in appellate procedure, the court of appeals could dismiss [an] appeal for
noncompliance only after allowing [the party] a reasonable time to correct this
defect.” Higgins v. Randall County Sheriff’s Office, 193 S.W.3d 898, 899 (Tex.
2006); see also, Ex parte F.F.A., 173 S.W.3d 605, 605 (Tex. App.—Waco 2005,
pet. denied) (“before we require payment of applicable filing fees under penalty of
dismissal, F.F.A. should be given a reasonable opportunity to cure his defective
affidavit.”).
8. Here, Grantham made a reasonable request: an extension of time to file his
motion for rehearing (and file the record) if it were determined that Appellees have
sufficient assets to satisfy the judgment Grantham seeks in this appeal. If no such
assets exist, then this appeal could be dismissed because it would be an exercise in
futility. Grantham should be afforded the opportunity to correct this harmless
procedural defect (not timely filing the record) that has no bearing on the merits.
See Verburgt, 959 S.W.2d at 616–17 (“appellate rules [disfavor] disposing of
appeals based upon harmless procedural defects.”); Higgins, 193 S.W.3d at 899
(“As with any other formal defect or irregularity in appellate procedure, the court
of appeals could dismiss the appeal for noncompliance only after allowing [the
3 party] a reasonable time to correct this defect.”); Crown Life Ins., 820 S.W.2d at
121 (“the decisions of the courts of appeals [should] turn on substance rather than
procedural technicality.”).
9. Also, courts of appeals have allowed such harmless procedural deficiencies
be cured on rehearing. See, e.g.,Atkins v. Herrera, No. 10-13-00283-CV (Tex.
App.—Waco Feb. 6, 2014, order) (not designated for publication); Keeter v. State,
No. 10-13-00310-CV (Tex. App.—Waco Mar. 13, 2014, order) (not designated for
publication); Mahuron v. TDCJ, No. 10-14-00116-CV Tex. App.—Waco Aug. 14,
2014, order); see also Reed v. Ford, No. 10-13-00279-CV, 2013 WL 5290112, at
*2, n.2 (Tex. App.—Waco Sept. 19, 2013, no pet.).
9. Further, courts of appeals have reinstated cases following dismissal for
harmless procedural defects. Roger Wu v. Star Houston, Inc., 110 S.W.3d 8, 10–11
(Tex. App.—Waco 2002, no pet.) (reinstating appeal following dismissal for
failing to file clerk’s record); Graham v. Amegy Bank Nat’l Ass’n, No. 14–13–
00079–CV (Tex. App.–Houston [14th Dist] July 11, 2013, order) (reinstating
appeal after dismissal for failing to file clerk’s record and pay filing fee) (attached
as Tab 1); Jefferson v. Unity Nat’l Bank, No. 14-14-00197-CV (Tex. App.–
Houston [14th Dist.] May 29, 2014, order) (reinstating appeal following dismissal
for failing to pay for and file the clerk’s record) (attached as Tab 2); Arnold
v.Federal Nat’l Mortgage Ass’n, No. 14-13-00418-CV (Tex. App.–Houston [14th
4 Dist.] August 16, 2013, order) (reinstating appeal after dismissal for failing to pay
filing fee and even though reporter’s fee had not been paid) (attached as Tab 3).
10. Thus, it is proper and consistent with established precedent for the Court to
reinstate the case and allow Grantham a reasonable amount of time to pay for and
file the record. This case should be “decided on the merits instead of on procedural
grounds.” John Hill Cayce, Jr., et al., Civil Appeals in Texas: Practicing Under the
New Rules of Appellate Procedure, 49 BAYLOR L.REV. 867, 873 (1997).
FOR THESE REASONS, Grantham respectfully requests that the Court
grant rehearing, reinstate the case, and allow him a reasonable time to pay for and
file the record.
Respectfully Submitted,
THE MCCLEERY LAW FIRM
//S//Stephen E. McCleery Stephen E. McCleery State Bar of Texas No. 00794258 Federal Id. No. 21007 5020 Montrose, Blvd., 6th Floor Houston, Texas 77006 Telephone 713/622-3555 Facsimile 713/224-8555 E-Mail smccleery@mccleerylaw.com
ATTORNEY FOR APPELLANT GUY GRANTHAM
5 CERTIFICATE OF SERVICE
The below signed certifies that on this the 30th day of July 2015, the above document was served, pursuant to TEX. R. CIV. P. 21, on the last known attorney of record for all Appellees via electronic service.
//S//Stephen E. McCleery The McCleery Law Firm
VIA ELECTRONIC SERVICE
Mr. R. Chris Day Law Offices of Day & Wallace 517 East Commerce Street Jacksonville, Texas 75766
ATTORNEYS FOR PLAINTIFF/COUNTER-DEFENDANT RACEFAB, INC./THIRD-PARTY DEFENDANTS
6 APPENDIX TAB 1 Motion for Rehearing Granted; Memorandum Opinion issued April 18, 2013, Withdrawn and Dismissal Judgment Vacated; Appeal Reinstated; Order filed June 11, 2013.
In The
Fourteenth Court of Appeals ____________
NO. 14-13-00079-CV ____________
MONICA J. GRAHAM, Appellant
V.
AMEGY BANK NATIONAL ASSOCIATION, Appellee
On Appeal from the County Civil Court at Law No. 3 Harris County, Texas Trial Court Cause No. 979389
ORDER On April 18, 2013, this court dismissed this appeal for want of prosecution because appellant had not paid for preparation of the clerk’s record. See Tex. R. App. P. 37.3(b). Appellant had also failed to pay the appellate filing fee. See Tex. R. App. P. 5. On May 2, 2013, appellant filed a motion for rehearing, stating that payment had been made and asking the court to reinstate the appeal. The clerk’s record was filed May 2, 2013. The appellate filing fee was paid on May 7, 2013. On May 6, 2013, the court requested a response to appellant’s motion for rehearing. See Tex. R. App. P. 49.2. No response was filed.
Accordingly, we GRANT appellant’s motion for rehearing. This court’s memorandum opinion issued April 18, 2013, is WITHDRAWN, the April 18, 2013, dismissal judgment is VACATED, and the appeal is ordered REINSTATED.
Appellant’s brief shall be due on or before July 11, 2013.
2 APPENDIX TAB 2 Motion to Reinstate Granted, Memorandum Opinion filed May 8, 2014, Withdrawn, Appeal Reinstated, and Order filed May 29, 2014.
In The
Fourteenth Court of Appeals ____________
NO. 14-14-00197-CV ____________
AUBREY R. JEFFERSON, Appellant
V.
UNITY NATIONAL BANK, Appellee
On Appeal from the County Civil Court at Law No. 2 Harris County, Texas Trial Court Cause No. 1004469
ORDER
On May 8, 2014, this court issued an opinion dismissing this appeal for want of prosecution for failure to make arrangements to pay for the clerk’s record. On May 14, 2014, appellant filed a motion to reinstate the appeal on the grounds that he has made arrangements to pay for the record. The motion is GRANTED.
This court’s opinion filed May 8, 2014, is WITHDRAWN, and our judgment of that date is VACATED. The appeal is ordered REINSTATED. The clerk’s record, filed May 14, 2014, reflects that appellant’s motion for reconsideration in the trial court was not timely filed; therefore, the notice of appeal is untimely. The court will consider dismissal of the appeal on its own motion for want of jurisdiction unless any party files a response on or before June 10, 2014, showing meritorious grounds for continuing the appeal.
Panel consists of Justices Christopher, Jamison, and McCally. APPENDIX TAB 3 Motion for Rehearing Granted; Memorandum Opinion Withdrawn, Reinstated; Order filed August 16, 2013.
In The
Fourteenth Court of Appeals ____________
NO. 14-13-00418-CV ____________
WARD ARNOLD, Appellant
V.
FEDERAL NATIONAL MORTGAGE ASSOCIATION A/K/A FANNIE MAE, Appellee
On Appeal from the County Court at Law No 2 Galveston County, Texas Trial Court Cause No. CV-0069239
ORDER
On July 18, 2013, this court dismissed this appeal because appellant had not paid the appellate filing fee and did not respond to this court’s notices and order. See Tex. R. App. P. 42.3(c) (allowing involuntary dismissal of case because appellant has failed to comply with a court order).
On July 19, 2013, appellant paid the fee and filed a motion for rehearing asking that we reinstate the appeal. Appellee filed a response in opposition to the motion.
Because the filing fee has now been paid, we GRANT the motion for rehearing, order our opinion of July 18, 2013, WITHDRAWN, our judgment of that date VACATED, and the appeal REINSTATED.
The reporter’s record has not been filed in this appeal. On June 24, 2013, the court reporter, Jana Fowler, advised this court that appellant had not paid for preparation of the record. Unless appellant pays for preparation of the record and provides this court with proof of payment on or before September 3, 2013, the court will order appellant to file a brief without the record. See Tex. R. App. P. 37.3(b).