Juan Garza v. Grupo Comercio Mundial

Opinion

Fourth Court of Appeals San Antonio, Texas December 20, 2019

No. 04-19-00564-CV

Juan GARZA, Appellant

v.

GRUPO COMERCIO MUNDIAL, Appellee

From the 49th Judicial District Court, Webb County, Texas Trial Court No. 2017CVF000590D1 Honorable Jose A. Lopez, Judge Presiding

ORDER By order dated November 14, 2019, we ordered appellant’s to file a response showing cause why this appeal should not be dismissed for lack of jurisdiction. Having reviewed appellant’s response and having further considered the jurisdictional issue, this court construes appellant’s appeal as a timely restricted appeal pursuant to Rule 30 of the Texas Rules of Appellate Procedure because the appeal is from a default judgment and appellants’ motion for new trial was untimely filed. See TEX. R. APP. P. 30 (“A party who did not participate—either in person or through counsel—in the hearing that resulted in the judgment complained of and who did not timely file a postjudgment motion or request for findings of fact and conclusions of law, or a notice of appeal within the time permitted by Rule 26.1(a), may file a notice of appeal within the time permitted by Rule 26.1(c).”); see also Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997) (noting Texas Supreme Court “has never wavered from the principle that appellate courts should not dismiss an appeal for a procedural defect whenever any arguable interpretation of the Rules of Appellate Procedure would preserve the appeal”). Accordingly, this appeal is RETAINED on the docket of this court.

Given this court’s order construing this appeal as a restricted appeal, appellant is ORDERED to file his appellate brief within 30 days from the date of this order framing his issues under the legal standards applicable to restricted appeals. _________________________________ Irene Rios, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 20th day of December, 2019.

___________________________________ MICHAEL A. CRUZ, Clerk of Court