paul-a-phommyvong-and-daovone-phommyvong-individually-and-of-behalf-of ( 2001 )

NO. 07-01-0391-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

NOVEMBER 28, 2001

______________________________



PAUL A. PHOMMYVONG AND DAOVONE PHOMMYVONG, INDIVIDUALLY AND ON BEHALF OF DECEASED DAUGHTER, LAURA PHOMMYVONG, APPELLANTS

V.

LEVI STRAUSS AND COMPANY, ET AL., APPELLEES

_________________________________

FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;

NO. 86,451-D; HONORABLE DON EMERSON, JUDGE

_______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.

ON MOTION FOR REHEARING

Appellants Paul A. Phommyvong and Daovone Phommyvong, individually and on behalf of their deceased daughter Laura Phommyvong, have filed a motion for rehearing of our order overruling their motion for extension of time to file their notice of appeal and dismissing their appeal for lack of jurisdiction. We believe that our original disposition of this matter is correct and overrule appellants' motion for rehearing.

To obtain an extension of time to file their notice of appeal, appellants must provide a reasonable explanation of their need for an extension, which must only consist of a plausible statement of circumstances indicating the failure to meet the deadline was not deliberate or intentional, but the result of inadvertence, mistake or mischance. Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 670 (Tex. 1989). In appellants' motion for extension of time, the explanation offered was twofold: (1) the court clerk filed the record although appellants told her the appeal would be premature, and (2) they did not understand that this court's previous dismissal of their appeal rendered it ineffective.

These two explanations relate to the prior procedural history of this appeal which we detailed in our original opinion, and thus will not do so again. Suffice it to say that appellants filed a notice of appeal from a summary judgment that did not dispose of all claims and all parties and then requested and were granted 45 days in which to cure the jurisdictional defect and file a supplemental clerk's record demonstrating the cure. When appellants failed to do so, their appeal was dismissed. Appellants, having obtained a final judgment, then filed a new notice of appeal with a request for an extension of time to do so and explained their late filing by complaining they did not understand the effect of our dismissal of their previous appeal. We found that explanation unreasonable and refused to grant appellants an extension of time.

In their motion for rehearing, appellants argue they believed their first notice of appeal was effective and deemed filed on June 20, 2001, after an order was entered disposing of the remaining claims. ⁽¹⁾ Therefore, we assume that appellants impliedly contend they did not realize that a second notice of appeal was necessary until after this court refused to file the supplemental record because the appeal had been dismissed. In a civil case, a prematurely filed notice of appeal is effective and deemed filed on the day of, but after, the event that begins the period for perfecting the appeal. Tex. R. App. P. 27.1(a). However, an appellate court only has jurisdiction of an appeal from a final judgment unless an interlocutory appeal is authorized by statute. Qwest Communications Corp. v. AT &T Corp., 24 S.W.3d 334, 336 (Tex. 2000). An appellate court may allow an appealed order that is not final to be modified to be made final and may allow the modified order and all proceedings relating to it to be included in a supplemental record. Tex. R. App. P. 27.2. That is the action taken by this court at appellants' request, and appellants were given a specific deadline by which a supplemental record was to be filed, or the appeal would be dismissed for lack of jurisdiction.

If this court had not dismissed the appeal, appellants' argument might have merit. However, appellants have completely ignored the dismissal of their appeal by this court and acted as if it never occurred. The only explanation offered for doing so is that they "had no reason to believe that their notice of appeal was expended when no substantive appeal was provided them." We do not find this explanation plausible. This court clearly has the authority to dismiss an appeal when an appellant fails to comply with an order of this court. Tex. R. App. P. 42.3(c). That right is not contingent on an appellant having received a "substantive appeal." Moreover, our dismissal did not take place until over a month after the date that appellants claim their notice of appeal should have been deemed filed. ⁽²⁾ Thus, appellants believed they had a filed, effective notice of appeal, but claim our subsequent dismissal had no effect on it other than to possibly deny them some sort of priority with respect to their appeal. While appellants argue that appellate courts should not dismiss an appeal whenever an arguable interpretation of the rules would preserve the appeal, we find no arguable interpretation of the rules which would permit appellants to ignore the plain effect of the dismissal.

Appellants further complain that this court apparently intended that the only appeal they would be entitled to was the "purported appeal" which was dismissed, and they did not understand that "a meaningful review of the trail [sic] courts [sic] judgment" would be denied them if they failed to challenge our dismissal of the "purported appeal." The appeal was dismissed because appellants failed to comply with the court's order, entered at appellants' request, that the jurisdictional defect be cured within 45 days and a supplemental record be provided to this court. Appellants never requested an extension of time to accomplish those acts, although they assert they were reluctant to do so and chose to "await consideration of their appeal on the merits in due course." Once the appeal was dismissed, appellants were entitled to invoke the jurisdiction of this court again by filing a new notice of appeal after a final, appealable order was entered by the trial court. However, appellants did not timely do so and, because the only explanations offered by them for that failure are tied to their prior dismissed appeal and their failure to comprehend the effect of that dismissal, we have been forced to consider the reasonableness of that explanation.

Finding no reason to believe that our original disposition of the matter was incorrect, we overrule appellants' motion for rehearing.

John T. Boyd

Chief Justice

Do not publish.

1. Appellants have not reargued their explanation that the court clerk erred in some manner, and we will not address it again.

2.

This court had no way of knowing that the jurisdictional defect had been cured because appellants failed to file a supplemental record as ordered by this court. Indeed, appellants did not even request the preparation of a supplemental record until after the time for filing a motion for rehearing of our dismissal had passed.

however, he must comport with the requirements specified in In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008) and In re J.B., __ S.W.3d ___, 2009 WL 283197 (Tex. App.–El Paso February 5, 2009, no pet. h.) before doing so.

          The deadline for filing an appellant’s brief with the clerk of this appellate court is extended to August 10, 2009, unless further extended by this court. Any responding brief which the Department may care to submit shall be filed within 30 days thereafter. Finally, the trial court is further directed to inform this court, in writing, of the name, address, and state bar number of Carpenter’s newly appointed counsel by July 10, 2009.

          It is so ordered.

                                                                                      Per Curiam