Richard F. Walsh, Medica-Rents Co., Ltd., and MED-RCO, Inc. v. Woundkair Concepts, Inc., Dan Anderson, and Kim Anderson

• Court: Court of Appeals of Texas
• Decided: January 20, 2015
• Docket: 02-14-00395-CV
• Status: Published

Opinion

ACCEPTED 02-14-00395-CV SECOND COURT OF APPEALS FORT WORTH, TEXAS 1/20/2015 3:02:45 PM DEBRA SPISAK CLERK

No. 02-14-00395-CV

FILED IN 2nd COURT OF APPEALS IN THE SECOND DISTRICT COURT OF APPEALS FORT WORTH, TEXAS FORT WORTH, TEXAS 01/20/2015 3:02:45 PM DEBRA SPISAK Clerk RICHARD F. WALSH, MEDICA-RENTS CO., LTD, AND MED-RCO, INC., Appellants,

v.

WOUNDKAIR CONCEPTS, INC., DAN ANDERSON, AND KIM ANDERSON, Appellees.

On Appeal from the 17th Judicial District Court Tarrant County, Texas Cause No.17-217058-06

REPLY SUPPORTING APPELLATE JURISDICTION

Stephen L. Tatum J. Lyndell Kirkley Douglas W. Alexander State Bar No. 19674500 State Bar No. 11523000 State Bar No. 00992350 statum@canteyhanger.com kirkley@kbblawyers.com dalexander@adjtlaw.com Ryan Logan Valdez THE KIRKLEY LAW FIRM, LLP Amy Warr State Bar No. 24037627 100 N. Forest Park Boulevard State Bar No. 00795708 rvaldez@canteyhanger.com Suite 220 awarr@adjtlaw.com John S. Polzer Fort Worth, Texas 76102 ALEXANDER DUBOSE State Bar No. 24042609 Telephone: (817) 335-3311 JEFFERSON & TOWNSEND LLP jpolzer@canteyhanger.com Facsimile: (817) 335-7733 515 Congress Avenue CANTEY HANGER, L.L.P. Suite 2350 Cantey Hanger Plaza Austin, Texas 78701-3562 600 West 6th Street Telephone: (512) 482-9300 Suite 300 Facsimile: (512) 482-9303 Fort Worth, Texas 76102 Telephone: (817) 877-2800 Facsimile: (817) 877-2807 ATTORNEYS FOR APPELLANTS TABLE OF CONTENTS Index of Authorities ................................................................................................. ii

Argument...................................................................................................................1 I. An extension of time is warranted. .................................................................1

II. This Court has jurisdiction to grant the extension of time. ............................3 Prayer ........................................................................................................................7 Certificate of Service ................................................................................................9 INDEX OF AUTHORITIES

Cases Bennett v. Cochran, 96 S.W.3d 227 (Tex. 2002)...................................................................................8

City of Houston v. Little Nell Apartments, L.P., 424 S.W. 3d 640 (Tex. App.—Houston [14th Dist.] 2014, pet. filed) ......................................................................................................................8 Crump v. Hill, 104 F.2d 36 (5th Cir. 1939) ..................................................................................7 Gregorian v. Ewell, 106 S.W.3d 257 (Tex. App.—Ft. Worth 2003, no pet.) ...........................3, 4, 5, 8 In re J.M., 396 S.W.3d 528 (Tex. 2013) ........................................................................3, 6, 7 In re J.M., 396 S.W.3d 609 (Tex. App.—Tyler 2012), rev’d, J.M., 396 S.W.3d at 529 .................................................................................................................6, 7 In re L.C.W., 411 S.W.3d 116 (Tex. App.—El Paso 2013, no pet.) .......................................... 8 Verburgt v. Dorner, 959 S.W.2d 615 (Tex. 1997) ................................................................................ 8

Rules TEX. R. APP. P. 26.1(a) ...............................................................................................4

TEX. R. APP. P. 26.3 ...................................................................................................4

ii ARGUMENT In response to the Court’s inquiry about appellate jurisdiction, Medica-Rents

moved for an extension of time to file its notice of appeal and established its

entitlement to that relief. Medica-Rents’ Br. at 15-19. The Appellee, Woundkair,

does not argue that the Court should deny the extension as an exercise of its

discretion. In fact, Woundkair does not dispute that (1) Medica-Rents provided a

reasonable explanation for its untimely notice, and (2) granting the extension would

cause no prejudice to Woundkair, because it was fully aware that Medica-Rents

intended to appeal.

Regardless, Woundkair asserts, there is a “gotcha.” Woundkair contends that,

despite the clear equities, the Court lacks authority to grant the extension of time.

Woundkair Br. at 15. That is incorrect. Under its own precedent and that of the

Texas Supreme Court, this Court has jurisdiction to grant the extension. See In re

J.M., 396 S.W.3d 528 (Tex. 2013) (per curiam); Gregorian v. Ewell, 106 S.W.3d

257 (Tex. App.—Ft. Worth 2003, no pet.).

I. An extension of time is warranted. After the jury returned a $4.4 million verdict against Medica-Rents, its

attorneys immediately began taking the necessary steps to challenge the verdict in

the trial court and on appeal. They filed a motion for judgment notwithstanding the

verdict. After judgment was entered, they renewed the JNOV motion and moved

for new trial, extending the appellate deadlines. Medica-Rents Br. Ex. C. They requested the record. Id. Ex. B. They urged the trial court, orally and in writing, to

grant the new trial to avert a costly, but otherwise inevitable, appeal. Id. Exs. E, H.

They did all of these things within 105 days of the judgment—the relevant

time period for perfecting appeal (90 days) and extending the time to do so (an

additional 15 days). TEX. R. APP. P. 26.1(a), 26.3. The only action Medica-Rents’

attorneys did not take within the 105 days was to file a formal notice of appeal,

because they mistakenly believed the deadline was several weeks later. Medica-

Rents Br. Exs. F, G.

Woundkair neither disputes these facts nor alleges that the failure to file was

deliberate or intentional. To the contrary, it acknowledges that Medica-Rents’

attorneys’ failure was due to a “good faith and mistaken belief about the deadline”

for the notice of appeal. Woundkair Br. at 15. Neither does Woundkair assert any

prejudice. It does not dispute that it was fully aware of Medica-Rents’ intent to

appeal the adverse judgment. See Gregorian, 106 S.W. 3d at 260 (granting

extension of time for notice of appeal in the absence of surprise or prejudice). Nor

could it. The record shows that Woundkair participated in multiple on-the-record or

written discussions regarding Medica-Rents’ appeal, including the amount and

timing of the supersedeas bond. Medica Rents Br. at 13 n.30, 16, Exs. E, I. The

undisputed equities, therefore, overwhelmingly weigh in favor of granting the

extension.

2 II. This Court has jurisdiction to grant the extension of time. Woundkair contends that the failure to timely file the notice of appeal is

“incurable.” Woundkair Br. at 15. Not so. This Court has authority to grant the

Appellants’ motion for extension of time because this case fits squarely under the

Supreme Court’s decision in J.M. and this Court’s decision in Gregorian.

Woundkair first argues that Medica-Rents could not have made a bona-fide

effort to appeal within the 105-day window because it mistakenly believed that the

notice of appeal was due weeks later and planned to file it on that date. Woundkair

Br. at 5. But that argument proves too much; it would prevent any appeal where the

notice of appeal was incorrectly calendared. This Court has made clear that even

when there is a mistake about the deadline, other timely-filed documents can

demonstrate the appellant’s desire to appeal. Gregorian, 106 S.W.3d at 258 (holding

that cash deposit in lieu of supersedeas bond was sufficient to invoke appellate

jurisdiction where notice of appeal was filed 30 days late because of calendaring

mistake).

There is no material difference between knowing what the correct date is to

file a notice of appeal but making a mistake in calendaring it and being mistaken

about the correct date. Both are good-faith mistakes of a type that should not divest

an appellate court of jurisdiction when, as here, the appellant has timely filed an

instrument demonstrating its desire to appeal.

3 Woundkair also contends that none of the documents that Medica-Rents filed

during the 105-day window provided notice of its present (rather than future) intent

to appeal. That is incorrect. Medica-Rents’ December 5, 2014, letter to the trial

court clearly and unequivocally stated that Medica-Rents intended to appeal if its

post-judgment motions were denied. Woundkair attempts to dismiss this letter as

discussing only the “possibility” of an appeal, Woundkair Br. at 11, but its language

is definite and direct: Medica-Rents stated that it “will be forced to appeal.” Medica-

Rents Br. App. H at 4.

Woundkair further contends that this letter is insufficient to invoke appellate

jurisdiction on the ground that it expresses, at most, a “conditional, future intent to

appeal.” Woundkair Br. at 2. But the Texas Supreme Court rejected just such an

argument in J.M.

In that case, the losing party timely filed a “Motion for New Trial or, in the

Alternative, Notice of Appeal.” J.M., 396 S.W.3d at 529. The court of appeals

dismissed the appeal for want of jurisdiction because “[a] conditional notice of

appeal contained within a motion for new trial does not express a party’s present

intention to perfect an appeal.” In re J.M., 396 S.W.3d 609, 613 (Tex. App.—Tyler

2012), rev’d, J.M., 396 S.W.3d at 529. The court of appeals reasoned that the

conditional notice was not a bona fide attempt to invoke appellate jurisdiction

because it expressed the party’s “intent to appeal the termination order if her motion

4 for new trial is not granted; it does not express her present intent to perfect an

appeal.” Id.

The Texas Supreme Court reversed, holding that “the present filing expressed

an intent to appeal to the court of appeals and was partially entitled a notice of appeal,

which constituted a bona fide attempt to invoke appellate jurisdiction upon its filing

with the trial court clerk.” J.M., 396 S.W.3d at 531. Unlike the court of appeals, the

Supreme Court gave no weight to the notice’s conditional nature. See id. 1

Similarly, the contingent nature of Medica-Rents’ statement of intent to

appeal is immaterial. The key is whether it “expressed an intent to appeal,” J.M.,

396 S.W.3d at 531, and it did. In J.M., the party advanced its notice of appeal “in

the alternative” to its motion for new trial. Id. at 529. Medica-Rents gave, in

substance, an identical statement of intent: it would appeal if the trial court denied

its postjudgment motions. Medica-Rents Br. at App. H. at 4.

The only difference is that the party in J.M. included the words “Notice of

Appeal” in the title of its document. J.M., 396 S.W.3d at 529. However, although

the title “Notice of Appeal” can indicate the requisite intent to appeal, such a title is

not required; indeed, the “primary factor . . . is not the form or substance” of the

instrument, but its intent. Id. at 530; Crump v. Hill, 104 F.2d 36, 38 (5th Cir. 1939)

1 Woundkair relies on a long list of court of appeals decisions that rely on the same reasoning the Supreme Court rejected in J.M. See Woundkair Br. at 4-5. All of these cases pre-date J.M.; thus, the Court should not rely upon them.

5 (holding that “failure to comply formalistically” with notice-of-appeal requirements

should not “defeat[] substantial rights.”); In re L.C.W., 411 S.W.3d 116, 121 (Tex.

App.—El Paso 2013, no pet.) (applying J.M. and holding that party’s filing

containing grounds for appeal was bona-fide attempt to invoke appellate jurisdiction

even though not a “notice of appeal”); City of Houston v. Little Nell Apartments,

L.P., 424 S.W. 3d 640, 645-46 (Tex. App.—Houston [14th Dist.] 2014, pet. filed)

(citing J.M. to hold that co-party should be permitted to appeal even though he was

not named in the notice of appeal).

This case is analogous to J.M. The intent expressed in the filed documents is

the same in both cases: a clear, unambiguous intent to appeal an adverse judgment.

As this Court has observed, “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.’” Gregorian, 106 S.W.3d at 258 (quoting

Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997)). Those courts should

“interpret[] the appellate rules, wherever possible, to achieve the aim of furthering

resolution of appeals on the merits.” Id. (quoting Bennett v. Cochran, 96 S.W.3d

227, 230 (Tex. 2002)). The rules can be interpreted to support jurisdiction here, and

this Court should do so.

6 PRAYER Dismissal is not warranted. Therefore, this appeal should proceed to briefing

and disposition on the merits.

Respectfully submitted,

/s/ Douglas W. Alexander Douglas W. Alexander State Bar No. 00992350 dalexander@adjtlaw.com Amy Warr State Bar No. 00795708 awarr@adjtlaw.com ALEXANDER DUBOSE JEFFERSON & TOWNSEND LLP 515 Congress Avenue, Suite 2350 Austin, Texas 78701-3562 Telephone: (512) 482-9300 Facsimile: (512) 482-9303

Stephen L. Tatum State Bar No. 19674500 statum@canteyhanger.com Ryan Logan Valdez State Bar No. 24037627 rvaldez@canteyhanger.com John. S. Polzer State Bar No. 24042609 jpolzer@canteyhanger.com CANTEY HANGER, L.L.P. Cantey Hanger Plaza 600 West 6th Street, Suite 300 Fort Worth, Texas 76102 Telephone: (817) 877-2800 Facsimile: (817) 877-2807

7 J. Lyndell Kirkley State Bar No. 11523000 kirkley@kbblawyers.com THE KIRKLEY LAW FIRM, LLP 100 N. Forest Park Boulevard, Suite 220 Fort Worth, Texas 76102 Telephone: (817) 335-3311 Facsimile: (817) 335-7733

ATTORNEYS FOR APPELLANTS

8 CERTIFICATE OF SERVICE On January 20, 2015, I electronically filed this Reply Supporting Appellate

Jurisdiction with the Clerk of the Court using the eFile.TXCourts.gov electronic

filing system which will send notification of such filing to the following (unless

otherwise noted below).

John H. Cayce, Jr. State Bar No. 04035650 john.cayce@kellyhart.com KELLY HART & HALLMAN LLP KELLY HART &HALLMAN LLP 201 Main Street, Suite 2500 Fort Worth, Texas 76102 Telephone: (817) 332-2500 Telecopier: (817) 878-9280

Mack Ed Swindle State Bar No. 19587500 mswindle@whitakerchalk.com Brent Shellhorse State Bar No. 24008022 bshellhorse@whitakerchalk.com WHITAKER CHALK SWINDLE & SCHWARTZ PLLC 301 Commerce Street, Suite 3500 Fort Worth, Texas 76102 Telephone: (817) 878-0500 Facsimile: (817) 878-0501

Attorneys for Appellees

/s/ Douglas W. Alexander Douglas W. Alexander