Richard Tobias v. SLP Brownwood LLC D/B/A Cross Country Healthcare Center, the Owners SLP Management, Inc., and Dr. N. Nigalye ( 2019 )

Order filed September 30, 2019
In The
Eleventh Court of Appeals
__________
No. 11-19-00247-CV
__________
RICHARD TOBIAS, Appellant
V.
SLP BROWNWOOD LLC D/B/A CROSS COUNTRY
HEALTHCARE CENTER, THE OWNERS SLP MANAGEMENT,
INC., AND DR. N. NIGALYE, Appellees
On Appeal from the 35th District Court
Brown County, Texas
Trial Court Cause No. CV1903123
ORDER
Appellees have filed in this court a motion to dismiss this appeal for lack of
jurisdiction. We deny the motion.
Appellant, Richard Tobias, filed a pro se notice of appeal from an order in
which the trial court dismissed Appellant’s claims based on Appellees’ Rule 91a
motions. See TEX. R. CIV. P. 91a. The trial court granted Appellees’ Rule 91a
motions and signed the order of dismissal on May 23, 2019. Appellant timely mailed
a motion to reinstate on June 7, 2019, as reflected by the USPS postmark.1 See
TEX. R. APP. P. 9.2(b) (filing by mail). The notice of appeal was mailed on July 29
and filed on July 30, 2019, within the ninety-day period permitted by Rule 26.1(a)
but beyond the thirty-day period otherwise required by Rule 26.1. See TEX. R.
APP. P. 26.1. Accordingly, the question before us is whether Appellant’s motion to
reinstate was sufficient to extend the deadline for the notice of appeal. We hold that
it was.
The substance of Appellant’s unverified motion to reinstate was akin to a
motion for new trial. It was, therefore, effective to extend the deadline for the filing
of the notice of appeal. See Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d
308, 313–14 (Tex. 2000) (holding that “a timely filed postjudgment motion that
seeks a substantive change in an existing judgment qualifies as a motion to modify
under Rule 329b(g), thus extending the trial court’s plenary jurisdiction and the
appellate timetable”); Gomez v. Tex. Dep’t of Crim. Justice, 896 S.W.2d 176, 176–
77 (Tex. 1995) (similar); see also Crotts v. Cole, 480 S.W.3d 99, 102–04 (Tex.
App.—Houston [14th Dist.] 2015, no pet.) (upholding appellate jurisdiction where
an unverified motion to reinstate was filed after a Rule 91a dismissal and holding
that Rule 165a of the Texas Rules of Civil Procedure applies only to dismissals for
want of prosecution, not to Rule 91a dismissals).
1
We note that the envelope was addressed to the 35th District Court in Brownwood, Texas, 76801
and was originally file stamped in Abilene, Texas, on June 7, 2019. For some unknown reason, the envelope
was subsequently file stamped in Louisville, Kentucky, on June 11. The motion to reinstate was not file
stamped by the district clerk’s office until July 2, 2019; however, July 2 was within ten days of the filing
deadline. See TEX. R. APP. P. 9.2(b)(1).
2
Accordingly, we deny Appellees’ motion to dismiss this appeal for lack of
jurisdiction.
PER CURIAM
September 30, 2019
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.2
Willson, J., not participating.
2
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
3