TIG Insurance Company v. Llebroc Industries, Inc. ( 2003 )

NO. 07-03-0115-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JULY 16, 2003

______________________________



TIG INSURANCE COMPANY, APPELLANT

V.

LLEBROC INDUSTRIES, INC., APPELLEE



_________________________________

FROM THE 72^ND DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2002-517,025A; HONORABLE J. BLAIR CHERRY, JR., JUDGE

_______________________________

MEMORANDUM OPINION ON JOINT MOTION TO REVERSE JUDGMENT AND REMAND CASE

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

By this restricted appeal pursuant to the provisions of Rule 30 of the Texas Rules of Appellate Procedure, appellant TIG Insurance Company caused the record to be filed and timely filed its brief requesting that we reverse the default judgment that appellee Llebroc Industries, L.L.C. recover $110,160, plus interest and attorney's fees from and of TIG. Llebroc has not filed a brief in response; instead, it joins TIG in a motion requesting that we reverse the default judgment and remand the case to the trial court for a new trial.

By their joint motion, the parties stipulate (1) TIG is a foreign insurer with authority to transact business in Texas; (2) TIG did not participate in the hearing that resulted in the default judgment nor otherwise file a post-judgment motion or request for findings of fact and conclusions of law, but first appeared by filing its notice of appeal; (3) TIG timely filed its restricted appeal; and (4) the process server did not serve the registered agent or the Commissioner of Insurance. Citing Commodore Cty. Mut. Ins. Co. v. Tkacik, 802 S.W.2d 913 (Tex.App.--Amarillo 1991), clarified on reh'g, 809 S.W.2d 630 (Tex.App.--Amarillo 1991, writ denied), the parties agree the default judgment signed November 22, 2002, should be reversed and the cause remanded based on the stipulated facts and Rule 30.

This Court has the authority to render the relief requested pursuant to Rule 43.2(d) of the Texas Rules of Appellate Procedure. See also Dunn v. Canadian Oil & Gas Services, Inc., 908 S.W.2d 323, 324 (Tex.App.--El Paso 1995, no writ). By their motion, the parties implicitly waive oral argument and agree the default judgment should be reversed and the proceeding remanded to the trial court. Accordingly, pursuant to the joint motion, the stipulations, and Rule 43.2(d), we reverse the default judgment and remand the cause to the trial court for further proceedings. See also Tex. R. App. P. 2. Having granted the relief requested by the parties, no motion for rehearing will be entertained and our mandate will issue forthwith.

Per Curiam

appeal. Tex. R. App. P. 25.2(a). ⁽²⁾ The notice of appeal must be filed within 30 days after the day sentence is imposed unless a timely motion for new trial is filed. TRAP 26.2(a). The time for filing a notice of appeal may be extended for 15 days under certain circumstances. TRAP 26.3. If the time for filing a notice of appeal is to be extended, both a notice of appeal and a motion for extension of time which complies with TRAP 10.5(b) must be filed within the 15 day period. TRAP 26.3; Olivo v. State, 918 S.W.2d 519, 523-25 (Tex.Crim.App. 1996). An untimely-filed notice of appeal will not invoke the jurisdiction of the court of appeals. See State v. Riewe, 13 S.W.3d 408, 411 (Tex.Crim.App. 2000). Thus, if an appeal is not timely perfected, a court of appeals does not have jurisdiction to address the merits of the appeal, and can take no action other than to dismiss the appeal. Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App. 1998); Olivo, 918 S.W.2d at 523-25.

To perfect appeal from a judgment which was rendered on the defendant's plea of guilty or nolo contendere, and in which the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant, the notice of appeal must (a) specify that the appeal is for a jurisdictional defect; (b) specify that the substance of the appeal was raised by written motion and ruled on before trial; or (c) state that the trial court granted permission to appeal. If appeal as to an issue or matter is properly perfected as to form, a court must examine the record underlying the notice of appeal to determine if jurisdiction substantively exists as to the issue or matter in question. Sherman v. State, 12 S.W.3d 489, 492 (Tex.App.--Dallas 1999, no pet.). Dismissal of an issue or the entire matter is appropriate unless both (1) the form of the notice of appeal is proper to perfect appeal as to the issue or matter, see Lyon v. State, 872 S.W.2d 732, 736-37 (Tex.Crim.App. 1994), and (2) the alleged jurisdiction is supported by the record. See Sherman, 12 S.W.3d at 492. In other words, if TRAP 25.2(b)(3) is applicable, then for an appellate court to have its jurisdiction invoked over a matter, compliance with TRAP 25.2(b)(3) is required as to both form and substance. Id.   

In the matter before us, appellant did not file his Notice of Appeal or a motion for new trial within 30 days of imposition of sentence. Unless we grant the Motion to Extend Time, appellant has not invoked our jurisdiction, and we must dismiss the appeal for lack of jurisdiction. See Slaton, 981 S.W.2d at 210.   

The Notice may have been filed within the time allowed pursuant to TRAP 26.3, although it was not file-marked by the district clerk until after expiration of the possible 15-day extension of time allowed by TRAP 26.3. The Motion to Extend Time for Filing Notice of Appeal was timely filed, according to the file mark from the 14^th Court of Appeals.

If we grant appellant's Motion to Extend Time, the form of appellant's Notice of Appeal must be examined for compliance with TRAP 25.2(b)(3), and the record must be examined for substantive compliance with TRAP 25.2(b)(3). See Sherman, 12 S.W.3d at 492. And, having examined the record for substantive compliance with TRAP 25.2(b)(3), we find that the record does not support compliance with that rule so as to invoke our appellate jurisdiction: the trial court did not give permission for appellant to appeal; there are no pre-trial motions which were overruled; and jurisdiction was properly vested in the trial court by presentation of an indictment. See Tex. Const. art. 5, § 12; Ex parte Long, 910 S.W.2d 485, 486 (Tex.Crim.App. 1995).

Thus, it is immaterial to the appeal whether appellant's Notice was filed within the 15-day extension time period allowed by TRAP 26.3 and, if so, whether we grant appellant's Motion to Extend Time to File Notice of Appeal, or whether we deny the Motion. Either way, appellant has not invoked our jurisdiction and we must dismiss the appeal. Accordingly, we deny appellant's Motion to Extend Time to File Notice of Appeal. The appeal is dismissed for lack of jurisdiction. See Slaton, 981 S.W.2d at 210.

Because we have no jurisdiction over the appeal except to dismiss it, see id., we cannot and do not consider appellate counsel's Motion to Withdraw.

Phil Johnson

Justice

Do not publish.

1. The appeal was transferred from the 14^th Court of Appeals to the 7^th Court of Appeals in Amarillo by order of the Texas Supreme Court.

2. Further reference to a Texas Rule of Appellate Procedure will be by "TRAP_."