Rosa Serrano D/B/A the Lens Factory v. City Bank and Old Republic National Title Insurance Company , 535 S.W.3d 889 ( 2016 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
ROSA SERRANO D/B/A No. 08-15-00044-CV
THE LENS FACTORY, §
Appeal from
Appellant, §
County Court at Law No. 7
v. §
of El Paso County, Texas
CITY BANK AND OLD REPUBLIC §
NATIONAL TITLE INSURANCE (TC # 2015-DCV-1079/2013-DCV-3139)
COMPANY, §
Appellees. §
OPINION
This appeal is before the Court on its own motion to determine whether it should be
dismissed for want of prosecution. Finding that Appellant, Rosa Serrano d/b/a The Lens
Factory, has failed to file her brief, we dismiss the appeal for want of prosecution.
This is an appeal from the trial court’s orders finding Serrano to be a vexatious litigant.
On August 25, 2016, the Court issued its opinion holding that Serrano was not entitled to a new
trial due to the loss of the court reporter’s notes because Serrano had failed to show that she was
not at fault. See Serrano v. City Bank and Old Republic National Title Insurance Company,
No. 08-15-00044-CV, 2016 WL 4483249 (Tex.App.--El Paso August 25, 2016, opinion on
motion). Consequently, we ordered that the appeal would be considered without the reporter’s
record. Id., 2016 WL 4483249 at *4. Serrano’s brief was due to be filed thirty days later,
September 24, 2016.
On September 28, 2016, Serrano filed an extension motion asking for ninety days in
which to file her brief. An appellate court has authority to extend the time for filing the brief
provided that the party files a motion complying with Rule 10.5(b). See TEX.R.APP.P. 10.5(b),
38.6(d). Among other things, the motion must state “the facts relied on to reasonably explain
the need for an extension.” TEX.R.APP.P. 10.5(b)(1)(C). In her unsworn motion, Serrano stated
that she had suffered a “relapse” on September 15, 2016, and she was not released from the
hospital until September 16, 2016. She also stated: “The relapse is debilitating and it takes
almost 30 to 45 days to recover.” Serrano asked for an extension of ninety days so that she could
receive “additional care.”
Old Republic National Title Insurance Company and City Bank filed responses objecting
to the motion and challenging the factual basis for the extension request. Among other things,
Old Republic and City Bank showed that Serrano sent an email to counsel on September 15,
2016 at 5:38 p.m. stating that she had begun changing the locks on the property involved in the
underlying case. Old Republic also attached an email from Burton Cohen, counsel for Pellicano
Park, LLC, and a motion for contempt filed by Pellicano Park on September 19, 2016, asserting
that Serrano had changed the locks on the property located at 11500 Pellicano Drive in El Paso
in violation of the final judgment entered by the court on September 15, 2016. City Bank’s
response also includes evidence showing that Serrano filed a 48-page motion to reconsider in the
United States District Court for the Western District of Texas 1 on September 20, 2016. In a
1
The case is styled Rosa Serrano v. El Paso County Jail Sheriff Richard Wiles and the Honorable Virgin Mulanax
(cause number EP-16-CV-l90DCG).
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different federal case, she also filed a 36-page motion to issue summons on September 23, 2016,
and a 68-page motion for new trial on September 27, 2016.2
Serrano did not file any reply to the responses of Old Republic and City Bank. After
reviewing the motion and the responses, the Court denied Serrano’s extension request on
October 4, 2016. Since that date, Serrano has filed a motion to recuse in this Court, and she has
provided the Court with courtesy copies of motions she has filed in the Texas Supreme Court
related to this appeal.
An appellate court is authorized to dismiss an appeal for want of prosecution when the
appellant fails to file her brief by the deadline and gives no reasonable explanation for such
failure. TEX.R.APP.P. 38.8(a)(1); Elizondo v. City of San Antonio, 975 S.W.2d 61, 63 (Tex.App.-
-San Antonio 1998, no writ). Serrano filed an extension motion, but the explanation she
provided is not reasonable because it is contradicted by evidence presented in the responses of
Old Republic and City Bank. Accordingly, we dismiss the appeal for want of prosecution. See
TEX.R.APP.P. 38.8(a)(1), 42.3(b). All pending motions are denied as moot.
October 27, 2016
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rodriguez, and Hughes, JJ.
Hughes, J., not participating
2
The case is style Rosa Serrano v. El Paso County Court at Law Number Seven (Honorable Virgil Mulanax),
Pellicano Business Park, L.L.C., Texas Corporation, Pellicano Plaza Warehouse Owner’s Association, Summit
Mountain, Inc., Lone Star Title Company, and Old Republic National Title Insurance, City Bank, Texas, Honorable
Linda Chew, Deputy Robinson (Sheriff’s Deputy), and Ms. Norma L. Favela (District Clerk)(cause number EP-16-
CV-0203-DB).
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