Jean W. MacDonald v. Franklin Federal Bancorp, F.S.B. ( 1993 )

MacDonald v. Franklin Federal Bancorp, F.S.B. IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN



ON MOTION FOR REHEARING



NO. 3-93-224-CV



JEAN W. MacDONALD,

APPELLANT

vs.



FRANKLIN FEDERAL BANCORP, F.S.B.,

APPELLEE

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT

NO. 91-15682, HONORABLE MARY PEARL WILLIAMS, JUDGE PRESIDING

PER CURIAM

On June 30, 1993, this Court dismissed appellant Jean W. MacDonald's appeal by granting appellee Franklin Federal Bancorp, F.S.B.'s motion to dismiss. See Tex. R. App. P. 60(a)(1). MacDonald has filed a motion for rehearing, which we will overrule. Although MacDonald's motion for rehearing does not specifically allege that this Court committed any error, we will write on rehearing to state why we granted Franklin Federal's motion to dismiss.

On January 8, 1993, the district court signed a judgment for Franklin Federal and against MacDonald for $250,000.00 plus prejudgment interest and attorney's fees. MacDonald timely filed a motion for new trial, therefore, extending the deadline to perfect her appeal. Tex. R. App. P. 41(a)(1). MacDonald next timely filed two affidavits of inability to pay the costs of appeal, and Franklin Federal timely filed a contest to the affidavits of inability. Tex. R. App. P. 40(a)(3). Annette S. Bell, the court reporter, also filed a contest to the affidavits of inability. The district court timely signed an order extending the time for hearing and determining Franklin Federal's contest. Tex. R. App. P. 40(a)(3)(E). Finally, the district court on May 3, 1993, timely sustained Franklin Federal's contest to the affidavits. MacDonald, therefore, had until May 13, 1993, to file her cost bond. Tex. R. App. P. 41(a)(2).

On May 11, 1993, MacDonald filed a motion for leave to file a petition for writ of mandamus requesting that this Court vacate the district court's order sustaining the contest. This Court overruled MacDonald's motion for leave to file. MacDonald v. Dibrell, No. 3-93-227-CV (Tex. App.--Austin May 28, 1993, orig. proceeding) (not designated for publication). On May 11, 1993, MacDonald next filed a motion for extension of time to file her cost bond and requested that the Court grant her an additional ninety days from the date her motion for leave to file a petition for writ of mandamus was overruled. See Lopez v. Foremost Paving, Inc., 671 S.W.2d 614, 618 (Tex. App.--San Antonio 1984, no writ) (interpreting Tex. R. Civ. P. 356(b), 43 Tex. B.J. 781 (1981, repealed 1986); now Tex. R. App. P. 41(a)(2)).

The Clerk of this Court wrote the parties on May 28, 1993, informing them that MacDonald's motion for extension of time to file the cost bond did not indicate that she filed a cost bond with the district clerk not later than fifteen days after the last day allowed. See Tex. R. App. P. 41(a)(2). The Clerk requested MacDonald to tender a certified copy of any timely filed cost bond by June 7, 1993. MacDonald did not tender any such document. On June 8, 1993, Franklin Federal filed a motion to dismiss the appeal because MacDonald failed to file a cost bond. See Id.; Tex. R. App. P. 60(a)(1).

MacDonald apparently failed to file the cost bond with the district clerk as required by Rule 41(a)(2). MacDonald requested relief that this Court was unable to grant; therefore, we overruled the motion for extension of time to file her cost bond and granted Franklin Federal's motion to dismiss the appeal.

The motion for rehearing is overruled.

[Before Chief Justice Carroll, Justices Aboussie and Jones]

Motion for Rehearing Overruled

Filed: August 25, 1993

[Do Not Publish]