William W. Ruth and Medical Park Memorial v. Joe Cooksey ( 2023 )

Opinion filed January 5, 2023
In The
Eleventh Court of Appeals
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No. 11-22-00356-CV
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WILLIAM W. RUTH AND MEDICAL PARK MEMORIAL
CENTER, INC., Appellants
V.
JOE COOKSEY, Appellee
On Appeal from the 35th District Court
Brown County, Texas
Trial Court Cause No. CV2204097
MEMORANDUM OPINION
William W. Ruth and Medical Park Memorial Center, Inc., Appellants, filed
this appeal from a final judgment in which the trial court granted a motion to dismiss
under the Texas Citizens Participation Act and dismissed Appellants’ claims with
prejudice. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001–.011 (West 2020)
(the TCPA). The trial court signed the judgment on November 8, 2022. Upon
docketing this appeal, the clerk of this court wrote the parties and informed them
that the notice of appeal, which was filed on December 19, 2022, appeared to have
been untimely filed. We requested that Appellants respond and show grounds to
continue the appeal. Appellee, Joe Cooksey, subsequently filed a motion to dismiss
this appeal for lack of jurisdiction.
Appellants filed a response, an amended notice of appeal, and a motion to
extend the deadline for the notice of appeal. Appellants assert that, prior to filing
the December 19 notice of appeal, they filed a “notice of appeal” on December 6,
2022—within the fifteen-day grace period authorized by the Texas Rules of
Appellate Procedure. Appellants assert that the December 6 document, which
Appellants attached to their amended notice of appeal, constituted a “bona fide
attempt to invoke this Court’s appellate jurisdiction.” We disagree.
In the December 6 document, styled “Specific Issues as to Finding of Facts
and Conclusion of Law in Order for a Motion for New Trial and/or Appeal to be
Filed,” Appellants set forth various complaints about the trial court’s ruling under
the TCPA. The document is addressed to the trial court and requests that court “to
address these facts and issues,” as well as other statements about Appellant Ruth that
Appellee “caused to be published.” In the final paragraph of the December 6
document, Appellants state:
For these reasons, Plaintiffs intend to file a Motion for New Trial
prior to November 8, 2002 [sic] and/or appeal this matter based upon
the above-referenced adverse ruling which is not supported in fact or
law, and asks that the court to [sic] conform its ruling according to the
statute.
We agree with Appellants that we must not look to “the form or substance” of
the December 6 document to determine whether it constitutes a notice of appeal;
rather, we must determine whether the December 6 document “was filed in a bona
fide attempt to invoke appellate court jurisdiction.” Warwick Towers Council of Co-
Owners ex rel. St. Paul Fire & Marine Ins. Co. v. Park Warwick, L.P., 244 S.W.3d
2838, 839 (Tex. 2008) (quoting Walker v. Blue Water Garden Apartments, 776
S.W.2d 578, 581 (Tex. 1989)); see also State ex rel. Durden v. Shahan, No. 21-1003,
2022 WL 17998216, at *3 (Tex. Dec. 30, 2022) (holding that notices of appeal that
expressly described the appellant’s attempt to appeal all issues as to all parties
constituted a bona fide attempt to invoke appellate jurisdiction); Mitschke v.
Borromeo, 645 S.W.3d 251, 260 (Tex. 2022) (“Texas law greatly favors resolving
litigation on the merits rather than on procedural technicalities.”). A timely filed
instrument will invoke the appellate court’s jurisdiction if it demonstrates a bona
fide attempt to do so, and appellate courts must grant an appellant a reasonable
opportunity to correct a procedural defect before dismissing an appeal because of
that defect. Durden, 2022 WL 17998216, at *3; In re J.M., 396 S.W.3d 528, 530
(Tex. 2013).
We cannot conclude, however, that the December 6 document was filed in a
bona fide attempt to invoke this court’s appellate jurisdiction. First, the document
was addressed to the trial court and requested relief from that court. Second, the
document contemplates the future filing of a motion for new trial “and/or” a notice
of appeal. Third, on December 5, 2022, Appellants filed a “Motion for New Trial
(To Extend the Appellate Deadlines)” “as allowed by Old Republic Ins. Co. v. Scott,
846 S.W.2d 832, 833 (Tex. 1993).” The supreme court in Scott stated that the filing
of a motion for new trial in order to extend the appellate timetable is a matter of
right, and it determined that Old Republic’s motion for new trial therefore extended
the deadline for the filing of its notice of appeal, making the notice of appeal due
ninety days after the judgment was signed. See 846 S.W.2d at 833; see also TEX. R.
APP. P. 26.1(a). Appellants’ reliance on Scott was misplaced, however, because the
appeal in Scott was not an accelerated appeal. The filing of a motion for new trial,
or other post-trial motion, “will not extend the time to perfect an accelerated appeal.”
TEX. R. APP. P. 28.1(b); accord In re K.A.F., 160 S.W.3d 923, 928 (Tex. 2005)
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(holding that motion for new trial will not operate to extend the appellate deadline
in an accelerated appeal and that the filing of a motion for new trial does not
constitute a bona fide attempt to invoke the jurisdiction of the court of appeals).
Because the appeal currently pending before us is an accelerated appeal, the deadline
for Appellants to file their notice of appeal could not be extended by a motion for
new trial.
The appellate timetables in this case began on the date that the trial court
signed its Order and Final Judgment—November 8, 2022. Accelerated timetables
apply to this appeal because it is an expedited appeal from a final order of dismissal
under Section 27.003 of the TCPA. See CIV. PRAC. & REM. § 27.008(b); TEX. R.
APP. P. 28.1(a); Ruff v. Wick Phillips Gould & Martin, LLP, No. 11-21-00130-CV,
2021 WL 3087505, at *2 (Tex. App.—Eastland July 22, 2021, no pet.) (mem. op.)
(holding that final order of dismissal under Section 27.003 of the TCPA is an
expedited appeal subject to accelerated appellate timetables); Deepwell Energy
Servs., LLC v. Aveda Transp. & Energy Servs., No. 11-20-00067-CV, 2020 WL
1625522, at *2 (Tex. App.—Eastland Apr. 2, 2020, pet. denied) (mem. op.)
(same); see also Lasater v. Thompson, No. 02-20-00290-CV, 2021 WL 386957, at
*2 (Tex. App.—Fort Worth Feb. 4, 2021, no pet.) (mem. op.) (rejecting argument
that Section 27.008(b) applies only to an order denying a motion to dismiss and
holding that statute’s plain language provides that any appeal from a trial court order
on a TCPA motion to dismiss is expedited and, therefore, accelerated).
Pursuant to the applicable accelerated timetables, the notice of appeal in this
case was due to be filed on November 28, 2022—twenty days after the November 8
judgment was signed. See TEX. R. APP. P. 26.1(b), 28.1(b). Appellant’s notice of
appeal was not filed until December 19, 2022—forty-one days after the date that the
trial court signed the judgment. Thus, the notice of appeal was also filed outside the
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fifteen-day extension period permitted by the rules. See TEX. R. APP. P. 26.3,
28.1(b). The notice of appeal was therefore untimely.
Absent a timely notice of appeal, this court is without jurisdiction to consider
this appeal. See Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 564 (Tex.
2005); Garza v. Hibernia Nat’l Bank, 227 S.W.3d 233, 233–34 (Tex. App.—
Houston [1st Dist.] 2007, no pet.); see also Verburgt v. Dorner, 959 S.W.2d 615,
617 (Tex. 1997). We note that we are prohibited from suspending the rules “to alter
the time for perfecting an appeal in a civil case.” TEX. R. APP. P. 2. Accordingly,
we deny Appellants’ motion to extend the deadline to file their notice of appeal.
Because we are without jurisdiction over the appeal and are prohibited from granting
an extension under the circumstances present in this appeal, we must dismiss the
appeal. See TEX. R. APP. P. 42.3(a).
Accordingly, we grant Appellee’s motion to dismiss, and we dismiss this
appeal for want of jurisdiction.
PER CURIAM
January 5, 2023
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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