Ullja Kuntze v. Sandra Cowan

• Court: Court of Appeals of Texas
• Decided: January 3, 2018
• Docket: 10-17-00228-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-17-00228-CV

ULLJA KUNTZE, Appellant v.

SANDRA COWAN, Appellee

From the 335th District Court Burleson County, Texas Trial Court No. 26,129 ________________

And

No. 10-17-00244-CV

EX PARTE ULLJA KUNTZE

Original Proceeding

ORDER AND NOTICE TO FILE RECORD

On November 1, 2017 Kuntze filed a document entitled “Appellant Ullja Kuntze’s

Request to Reconsider Oct 18, 2017 Order & Appellant’s Explanation as to why she unknowingly filed her Notice of Appeal 3 days late.” The 28 page document takes the

Court to task for what Kuntze characterizes as the use of imaginary documents and lies,

and the lunacy of the Court’s order. The document is divided into two primary

sections. One section addresses the only thing we asked Kuntze to address in our October

18, 2017 order, which was to provide a reasonable explanation why her notice of appeal

was filed late. The other section sets out 12 issues in which Kuntze repetitively argues

what is essentially two mistakes in the Court’s October 18, 2017 order.

Because the two mistakes consume the bulk of Kuntze’s filing, the Court has

decided to address the complaints by issuing this order that acknowledges the mistakes

in the recitation of facts in the October 18, 2017 order and will comment upon the Court’s

action to correct them. First, the Court stated, both in the caption of the case and within

the body of the order that the proceeding arose out of a case from the 21st District Court

of Burleson County. While that is the information that was provided to the Court by the

District Clerk on the cover sheet provided with the notice of appeal, we note that Kuntze

is correct that the trial court’s docket sheet and the final judgment both indicate that the

actual trial court is the 335th District Court of Burleson County. We have already made

this correction in our case management system, TAMES (Texas Appeals Management

and e-Filing System).

The second mistake was a miscommunication between the justices who rendered

the order and the Court Clerk regarding the proceeding in which the motion-challenging-

the-trial-court’s-determination-that-Kuntze-was-not-indigent was to be filed. The Court

thought the motion was filed in both the appeal and the original proceeding but it was

Kuntze v. Cowan Page 2 Ex parte Kuntze mistakenly filed in only the appeal. This miscommunication between the Court and the

Clerk will be corrected by causing the motion to also be filed in the original proceeding

where it belongs, rather than it being filed only in the appeal. Because the same

document also contains a motion which seeks a stay of the appeal pending a disposition

of the indigency issue, the motion as it relates to the motion to stay, must also remain

filed in the appeal. The filing date for the motion in the original proceeding will reflect

the date it was actually filed and not the date that it was added to the original

proceeding. Thus, the date of filing will not change and it will be filed in both

proceedings, one as a motion to stay the appeal, and the other as a motion for review of

the trial court’s determination that Kuntze is not indigent.

As to the response we requested from Kuntze seeking a reasonable explanation for

the late filing of the notice of appeal as required by the Texas Rules of Civil Procedure

and the Texas Supreme Court’s holding in Verburgt, which is the only response we

needed from Kuntze, she explained that she misunderstood the rules and thought the

time to file her notice of appeal ran from the date the trial court denied her motion for

new-trial rather than the date the final judgment was signed. Verburgt v. Dorner, 959

S.W.2d 615 (Tex. 1997). This is an adequate explanation under Verburgt. Id. Accordingly,

the Court grants an implied motion for extension of time to file Kuntze’s notice of appeal.

See id. at 617. (A motion for extension of time is necessarily implied when an appellant

acting in good faith files a notice of appeal within the fifteen-day period in which the

appellant would be entitled to move to extend the filing deadline).

Kuntze v. Cowan Page 3 Ex parte Kuntze To the extent not expressly granted herein, all relief requested, if any, and

objections made, if any, in the November 1, 2017 motion is denied and overruled,

respectively.

In a separate motion filed on July 28, 2017, Kuntze moved to stay this appeal until

the trial court had ruled on her motion (now filed as an original proceeding, Ex parte

Kuntze, 10-17-00244-CV) which seeks a review of the trial court’s determination that

Kuntze could pay cost. Kuntze’s motion for stay of this appeal is granted until further

order of the Court.

Kuntze also filed a motion to reconsider the Court’s October 18, 2017 order as it

relates to Ex parte Kuntze, 10-17-00244-CV. The Court’s previous order stayed that

proceeding. Nevertheless, the Court has corrected Kuntze’s primary complaint in that

motion by filing the July 28, 2017 motion in the original proceeding. To the extent Kuntze

requests additional relief in the motion to reconsider filed on November 1, 2017, it is

denied.

The stay in Ex parte Kuntze, 10-17-00244-CV, is lifted, and the proceeding is

reinstated. Accordingly, this is the notice pursuant to Rule 145(g)(3) of the Texas Rules

of Civil Procedure to the trial court clerk and the trial court reporter requesting

preparation of the record of all trial court proceedings on the declarant’s claim of

indigence. The Court requests these limited records within 21 days from the date of this

order. The requested records must be provided without charge. See TEX. R. CIV. P.

145(g)(3).

PER CURIAM

Kuntze v. Cowan Page 4 Ex parte Kuntze Before Chief Justice Gray, Justice Davis, and Justice Scoggins Motions denied Appeal stayed Stay of original proceeding lifted Order issued and filed January 3, 2018 Publish

Kuntze v. Cowan Page 5 Ex parte Kuntze