Vincent Krussow v. Elena Emily Lucio Garcia ( 2020 )

NUMBER 13-20-00179-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
____________________________________________________________
VINCENT KRUSSOW, Appellant,
v.
ELENA EMILY LUCIO GARCIA, ET AL, Appellees.
____________________________________________________________
On appeal from the County Court at Law No. 1
of Nueces County, Texas.
____________________________________________________________
MEMORANDUM OPINION
Before Justices Benavides, Hinojosa, and Tijerina
Memorandum Opinion by Justice Hinojosa
This cause is before the Court on its own motion. We must sua sponte consider
whether appellant Vincent Krussow untimely perfected his appeal to this Court, an issue
which affects our jurisdiction. See State ex rel. Best v. Harper, 562 S.W.3d 1, 7 (Tex.
2018); Allstate Ins. Co. v. Barnet, 589 S.W.3d 313, 317 (Tex. App.—El Paso 2019, no
pet.). After due consideration, we dismiss the appeal as untimely.
I. BACKGROUND
Appellant attempted to perfect an appeal from a judgment entered by County Court
at Law No 1 of Nueces County, Texas, in cause 10-61405-00-0-1. Judgment dismissing
appellant’s case for want of prosecution was signed February 28, 2019; however, the
notice of dismissal was not issued by the district clerk until April 2, 2019. Proceeding pro
se, appellant filed a notice of appeal on April 7, 2020.
On August 7, 2020, the Clerk of the Court notified appellant that it appeared his
appeal was not timely perfected and requested correction of the defect within ten days.
See TEX. R. APP. P. 42.3. The Clerk advised appellant the appeal would be dismissed if
the defect remain uncured. Appellant thereafter filed motions seeking appointment of an
attorney and preparation of the appellate record. Appellant also filed motions requesting
we allow the appeal to proceed and for leave to file the notice of appeal. We abated and
remanded the case to the trial court for consideration of matters pertaining to the
appointment of an attorney and preparation of the record, and based on representations
made in appellant’s motions, granted appellant’s requests for leave to file the notice of
appeal and to allow the appeal to proceed. Appellant alleged, in sum, he was not timely
provided with notice of the trial court’s judgment from the district clerk or his counsel.
II. APPLICABLE LAW
Absent a timely filed notice of appeal, an appellate court lacks jurisdiction over the
appeal. In re United Servs. Auto. Ass’n, 307 S.W.3d 299, 307 (Tex. 2010) (orig.
proceeding); Jarrell v. Bergdorf, 580 S.W.3d 463, 466 (Tex. App.—Houston [14th Dist.]
2019, no pet.); Baker v. Regency Nursing & Rehab. Ctrs., Inc., 534 S.W.3d 684, 684–85
(Tex. App.—Corpus Christi–Edinburg 2017, no pet.). Generally, a notice of appeal is due
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within thirty days after the judgment is signed. See TEX. R. APP. P. 26.1. The deadline to
file a notice of appeal is extended to ninety days after the date the judgment is signed if,
within thirty days after the judgment is signed, any party timely files a motion for new trial,
motion to modify the judgment, motion to reinstate, or, under certain circumstances, a
request for findings of fact and conclusions of law. See id. R. 26.1(a); TEX. R. CIV. P. 296,
329b(a),(g); Young v. Di Ferrante, 553 S.W.3d 125, 128 (Tex. App.—Houston [14th Dist.]
2018, pet. denied).
The time to file a notice of appeal also may be extended if, within fifteen days after
the deadline to file the notice of appeal, a party properly files a motion for extension of
time. See TEX. R. APP. P. 10.5(b), 26.3. A motion for extension of time is necessarily
implied when an appellant, acting in good faith, files a notice of appeal beyond the time
allowed by Rule 26.1 but within the fifteen-day extension period provided by Rule 26.3.
See id. R. 26.1, 26.3; Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (discussing
the former appellate rules); Baker, 534 S.W.3d at 684–85; City of Dallas v. Hillis, 308
S.W.3d 526, 529 (Tex. App.—Dallas 2010, pet. denied). Although a motion for extension
of time is necessarily implied, the appellant must still provide a reasonable explanation
for failing to file the notice of appeal timely. See TEX. R. APP. P. 10.5(b)(1)(C), (2)(A);
Jones v. City of Houston, 976 S.W.2d 676, 677 (Tex. 1998); Felt v. Comerica Bank, 401
S.W.3d 802, 806 (Tex. App.—Houston [14th Dist.] 2013, no pet.). Any conduct short of
deliberate or intentional noncompliance qualifies as a reasonable explanation for failing
to timely file the notice of appeal. Hone v. Hanafin, 104 S.W.3d 884, 886–87 (Tex. 2003)
(per curiam); Baker, 534 S.W.3d at 685. But, “once the period for granting a motion for
extension of time under Rule [26.3] has passed, a party can no longer invoke the appellate
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court’s jurisdiction.” Verburgt, 959 S.W.2d at 617; see Kinnard v. Carnahan, 25 S.W.3d
266, 268 (Tex. App.—San Antonio 2000, no pet.). Stated otherwise, we may not “alter the
time for perfecting an appeal beyond the period” authorized by the appellate rules.
Verburgt, 959 S.W.2d at 617.
Texas Rule of Civil Procedure 306a(3) requires the clerk of the court to provide
notice regarding the entry of judgments or appealable orders. See TEX. R. CIV. P. 306a(3).
The rule states, in relevant part:
When the final judgment or other appealable order is signed, the clerk of
the court shall immediately give notice to the parties or their attorneys of
record by first-class mail advising that the judgment or order was signed.
Failure to comply with the provisions of this rule shall not affect the periods
mentioned in paragraph (1) of this rule, except as provided in paragraph (4).
Id. Paragraph (1), as referenced in the rule, provides that the deadline for filing post
judgment motions, such as a motion for new trial or motion to reinstate a case, begins to
run on the date the judgment is signed. See id. R. 306a(1). Paragraph (4) addresses what
happens when a party does not immediately receive notice of a judgment, as appellant
alleges happened here. See id. R. 306a(4). It provides that, when more than twenty days
have passed between the date that the trial court signs the judgment or appealable order
and the date that a party receives notice or acquires actual knowledge of the signing, the
periods referenced in paragraph (1) will begin on the date the party received notice or
acquired actual knowledge of the signing, whichever is earlier, but in no event will the
period begin more than ninety days after the judgment was signed. Id.; see Pilot Travel
Ctrs., LLC v. McCray, 416 S.W.3d 168, 176 (Tex. App.––Dallas 2013, no pet.); see also
John v. Marshall Health Servs., Inc., 58 S.W.3d 738, 740 (Tex. 2001) (per curiam).
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To obtain an extension of post judgment deadlines under Rule 306a(4), the party
must prove in the trial court, on sworn motion and notice: (1) the date the party or her
attorney first either received a notice of the judgment or acquired actual knowledge of the
signing; and (2) that this date was more than twenty but fewer than ninety-one days after
the judgment was signed. See TEX. R. CIV. P. 306a(4),(5); Estate of Howley v. Haberman,
878 S.W.2d 139, 140 (Tex. 1994) (orig. proceeding) (per curiam); In re J.S., 392 S.W.3d
334, 337 (Tex. App.—El Paso 2013, no pet.); Nathan A. Watson Co. v. Employers Mut.
Cas. Co., 218 S.W.3d 797, 800 (Tex. App.—Fort Worth 2007, no pet.). The purpose of a
sworn motion is to establish a prima facie case of lack of timely notice, thereby invoking
the trial court’s otherwise-expired jurisdiction for the limited purpose of conducting an
evidentiary hearing to determine the date on which the party or the party’s counsel first
received notice or acquired knowledge of the judgment. In re Lynd Co., 195 S.W.3d at
685; Jarrell v. Bergdorf, 580 S.W.3d 463, 467 (Tex. App.—Houston [14th Dist.] 2019, no
pet.); In re Estrada, 492 S.W.3d 42, 50 (Tex. App.—Corpus Christi–Edinburg 2016, orig.
proceeding); In re J.S., 392 S.W.3d at 337.
III. ANALYSIS
The judgment subject to appeal was signed on February 28, 2019. Appellant did
not file his notice of appeal until April 7, 2020, more than a year later. The appeal was not
filed timely under the appellate rules. See TEX. R. APP. P. 26.1. Appellant alleges that he
did not receive notice of the judgment until “on or about March 25, 2020.” However, that
date does not fall within the parameters of Rule 306a insofar as it is greater than the
ninety-day period allotted by the rule, and accordingly, Rule 306a may not be utilized to
extend the deadline for filing the notice of appeal. See TEX. R. CIV. P. 306a(4),(5); Estate
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of Howley, 878 S.W.2d at 140; In re J.S., 392 S.W.3d at 337. The notice of appeal was
late, and we lack the power to consider it timely filed. See TEX. R. APP. P. 2.
IV. CONCLUSION
The Court, having examined and fully considered the appellant’s pleadings, the
clerk’s record, and the applicable law, is of the opinion that the notice of appeal was
untimely and we lack jurisdiction over the appeal. Accordingly, we REINSTATE this
appeal. We VACATE the October 19, 2020 rulings issued by this Court which granted
appellant’s motion to allow the appeal to continue and appellant’s motion for leave to file
the notice of appeal. We instead DENY appellant’s motion to allow the appeal to continue
and appellant’s motion for leave to file the notice of appeal. We further DENY appellant’s
motion for leave to file an extension of time. We DISMISS the appeal for lack of
jurisdiction. See TEX. R. APP. P. 42.3(a). Accordingly, all other pending motions not
addressed in this opinion are DISMISSED AS MOOT.
LETICIA HINOJOSA
Justice
Delivered and filed the
10th day of December, 2020.
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