Thomas G. Schuring and Rose M. Schuring v. Fosters Mill Village Community Association

• Court: Court of Appeals of Texas
• Decided: March 29, 2012
• Docket: 14-12-00250-CV
• Status: Published

Opinion

Order filed March 29, 2012.

In The

Fourteenth Court of Appeals ____________

NO. 14-12-00250-CV ____________

THOMAS G. SCHURING and ROSE M. SCHURING, Appellants

V.

FOSTERS MILL VILLAGE COMMUNITY ASSOCIATION, Appellee

On Appeal from the 61st District Court Harris County, Texas Trial Court Cause No. 2009-76232

ORDER

On March 13, 2012, appellants’ notice of appeal was assigned to this court. The notice of appeal was filed with the Harris County District Clerk on March 9, 2012. The notice states that the appeal is taken from an order signed January 26, 2012, denying appellants’ motion to dissolve the trial court’s permanent injunction, which had been signed November 21, 2010. According to information provided by the Harris County District Clerk, no motion for reconsideration or other post-judgment motion was filed after the court denied the motion to dissolve. Therefore, appellants’ notice of appeal was due February 27, 2012. See Tex. R. App. P. 4.1(a); 26.1. The notice of appeal was filed within fifteen days of its due date. We may extend the time to file a notice of appeal if, within 15 days of the filing deadline, appellants file the notice of appeal and a motion reasonably explaining the need for the extension. See Tex. R. App. P. 10.5(b)(2); 26.3.

Appellants filed a timely motion to extend time to file their notice of appeal on March 12, 2012. In the motion, appellants asserted that they believed that an appeal was unavailable because the permanent injunction had been signed November 23, 2010. Accordingly, they filed a petition for writ of mandamus. See In re Schuring, No. 14-12-00201-CV, 2012 WL 727746 (Tex. App.—Houston [14th Dist.] Mar. 2, 2012 (orig. proceeding) (mem. op.). This court denied relief, in part because relators did not establish that an appeal is inadequate. Id. at *1. As long as a permanent injunction order concerns a continuing situation, the trial court retains the power to change, alter, or modify the equitable relief it granted upon a showing of changed circumstances. City of Tyler v. St. Louis Sw. Ry. Co., 405 S.W.2d 330, 333 (Tex. 1966). The trial court has jurisdiction to modify or vacate its permanent injunction judgment because of changed conditions, and the judgment doing so, or refusing to do so, is reviewable on appeal. Id.

No clerk’s record has been filed in this appeal, and appellants have advised the court that payment has not been made pending our ruling on their motion to extend time to file the notice of appeal. Ordinarily, this court requires a clerk’s record to review whether we have jurisdiction over an appeal. However, in this case, we may rely on the certified copy of the order being appealed, and other documents, that were included with the petition in the related mandamus proceeding. A court of appeals has the power to take judicial notice of its own files. See Tello v. Bank One, N.A., 218 S.W.3d 109, 113 n. 4 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (appellate court took judicial notice of pertinent pleadings included in appellate record from another appeal in same trial court case). A court of appeals may take judicial notice of documents from a related mandamus proceeding. See Joe Williamson Constr. Co. v. Raymondville I.S.D., 251 S.W.3d 800, 802 n. 2 (Tex. App.—Corpus Christi 2008, no pet.).

2 We have considered appellants’ motion for extension of time and order the motion GRANTED. The clerk’s record was due March 26, 2012, but it has not been filed because appellants have not paid for its preparation. If the trial court clerk fails to file the clerk’s record because appellants failed to pay for preparation of the record, the appellate court may dismiss the appeal for want of prosecution. See Tex. R. App. P. 37.3(b). Accordingly, unless appellants provide this court with proof of payment for preparation of the record within 15 days of the date of this court, the court will consider dismissal of the appeal.

PER CURIAM

Panel consists of Chief Justice Hedges and Justices Jamison and McCally.