Charles Ronald Wade v. Harris County, Harris County Department of Education, Port of Houston Authority of Harris County, Harris County Flood Control District, Harris County Hospital District, City of Houston, Houston Independent School District, and Houston Community College Sy

ACCEPTED
01-15-00155-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
5/28/2015 10:35:32 AM
CHRISTOPHER PRINE
CLERK
CASE NO. 01-15-00155-CV
FILED IN
1st COURT OF APPEALS
IN THE COURT OF APPEALS HOUSTON, TEXAS
FOR THE FIRST JUDICIAL DISTRICT 5/28/2015 10:35:32 AM
HOUSTON, TEXAS CHRISTOPHER A. PRINE
Clerk
CHARLES WADE, APPELLANT
VS.
HARRIS COUNTY, ET AL., APPELLEES
On Appeal from the 295TH Judicial District Court of
Harris County, Texas, Trial Court No. 2011-69056
APPELLEES’ REPLY TO APPELLANT’S RESPONSE
LINEBARGER GOGGAN BLAIR
& SAMPSON, LLP
4828 Loop Central Drive, Suite 600
Houston, Texas 78701
(713) 844-3405 direct phone
(713) 844-3400 main phone
(713) 844-3504 fax
Edward J. (Nick) Nicholas
State Bar No. 14991350
Nick.Nicholas@lgbs.com
Anthony W. (Tony) Nims
State Bar No. 15031500
Tony.Nims@lgbs.com
ATTORNEYS FOR APPELLEES
APPELLEES’ REPLY TO APPELLANT’S RESPONSE
Pursuant to Rules 5, 26, 37 and 42.3, TEX. R. APP. P., Appellees filed a Motion
to Dismiss asking the Court to dismiss this appeal for, inter alia, lack of jurisdiction
because Appellant, Charles Wade, failed to timely file his Notice of Appeal. On
May 14, 2014, the Court issued a letter instructing Appellant to provide a detailed
explanation showing that the Court has jurisdiction over this appeal. On May 26,
2015, Appellant filed his Response to Court Notice of 05/14/15 and/or Response to
Appellee Motion to Dismiss (“Response”). Appellees now file this Reply to
Appellant’s Response.
I. SUMMARY
1. Although a court of appeals should not dismiss an appeal for formal
defects or irregularities in appellate procedure in all cases, a court of appeals cannot
exercise jurisdiction when: (a) the appellant fails to file the proper “Document”
timely, and/or (b) the filed Document does not constitute a bona fide attempt to
invoke the court of appeal’s jurisdiction. In this case the Appellant failed to file a
proper Document timely, and he failed to file any Document invoking this Court’s
jurisdiction. Accordingly, this appeal should be dismissed for lack of jurisdiction.
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II. ARGUMENT & AUTHORITIES
A. Appellant failed to file a proper Document timely
2. Appellees contend that, to be timely, Appellant had to file his Notice of
Appeal on or before October 30, 2015, but that Appellant filed his Notice of Appeal
on February 15, 2015. (See Motion to Dismiss, ¶ 6, p.2). Appellant does not dispute
this fact. (Response, ¶ 1, p. 4). Instead, and based upon the filing of another
Document (which purportedly constitutes a bona fide attempt to invoke this Court’s
jurisdiction), Appellant asserts that this Court should exercise jurisdiction pursuant
to TEX. R. APP. P. 44.3 (formerly Rule 83) (Id.).
3. However, the other bona fide Document must still be filed timely.
Warwick Towers Council of Co-Owners v. Park Warwick, L.P., 244 S.W.3d 838,
839 (Tex. 2008) (“We have further said that, ‘[i]f the appellant timely files a
document in a bona fide attempt to invoke the appellate court’s jurisdiction, the court
of appeals… must allow the appellant an apportion to amend or refile…”), citing,
Grand Prairie Indep. Sch. Dist. v. S. Parts. Imp., Inc. 813 S.W.2d 499, 500 (Tex.
1991) (per curiam). If the other Document is not filed timely, then the Court of
Appeals does not have jurisdiction. Foster v. Williams, 74 S.W.3d 200, 204
(Tex.App.-Texarkana 2002, pet. denied) (“The docketing statement filed by the
Fosters, even if considered to suffice as a notice of appeal, was not filed until
approximately eighty days after the judgment was signed. It was thus not timely.
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When a timely notice of appeal is not filed, this Court does not have jurisdiction to
consider the appeal on its merits.); Walsh v. Woundkair Concepts, Inc., No. 02-14-
00395-CV, 2015 WL 1544004, *5 (Tex.App.-Fort Worth, April 2, 2015, no pet.)
(mem. op. on reconsideration en banc) (“Because Appellants failed to timely file any
instrument in a bona fide attempt to invoke this court’s appellate jurisdiction … we
have no choice but to deny Appellants’ motion for extension of time and to dismiss
this appeal for want of jurisdiction.”).
4. Moreover, because the presence or absence of jurisdiction is more than
a mere procedural irregularity, Appellant’s reliance on former Rule 83, Sanchez v.
State, 885 S.W.2d 444, 446 (Tex.App.-Corpus Christi 1994, pet. denied) and
Boulous v. State, 775 S.W.2d 8 (Tex.App.-Houston [1st Dist.] 1989, pet ref’d) is
misplaced. Both of those cases were criminal cases, and both were later disapproved
of by the Court of Criminal Appeals’ en banc opinion in Olivo v. State, 918 S.W.2d
519, 522 (Tex.Crim.App. 1996):
We disagree with the Corpus Christi Court of Appeals’ characterization
of the lack of a timely filed motion for extension of time to file notice
of appeal. It is not a mere procedural irregularity; it is a jurisdictional
defect.
Accordingly, because Appellant did not timely file his Notice of Appeal, or any other
proper Document, this Court does not have jurisdiction, and the Appeal should be
dismissed.
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B. Appellant failed to file any Document invoking this Court’s jurisdiction
5. Besides being filed timely, the other bona fide Document must also
invoke the Court of Appeal’s jurisdiction. Plaintiff’s Response points to five
documents he filed in addition to the February 15, 2015 Notice of Appeal:
(1) Request for Jury Trial (Response, ¶ 1, p.2);
(2) Motion for Continuance and Objection and Proposed Order
Granting Motion for Continuance (Response, ¶ 1, p.2);
(3) Verified Petition for Temporary Injunction (Response, ¶ 2,
p.2);
(4) July 27, 2014 Notice of Appeal to the 295th Judicial District
Court from the Tax Master’s Court (Response, ¶ 3, p.3,
Exhibit 4); and
(5) Motion for New Trial and Affidavit in Support of the Motion
for New Trial (Response, ¶ 4, p.3).
However, none of these documents state that Appellant wants to appeal the case to
this Court.1 As a result, they do not invoke this Court’s jurisdiction. Warwick, 244
S.W.3d at 839. (“[W]e have repeatedly said ‘that the factor which determines
whether jurisdiction has been conferred … [is] whether the instrument ‘was filed in
a bona fide attempt to invoke appellate court jurisdiction’.”). See also, Linwood v.
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In re Smith, 270 S.W.3d 783, 786-87 (Tex.App.-Waco 2008, no pet) (“Here, Smith’s
letter [was sufficient because it] plainly stated his intent to appeal and identified the style and
cause number of the case.”).
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NCNB Tex., 885 S.W.2d 102, 103 (Tex. 1994) (per curiam) and Grand Prairie, 813
S.W.3d at 500.
6. If the other Document does not make a bona fide attempt to invoke the
appellate court’s jurisdiction, then the appeal must be dismissed for want of
jurisdiction. Walsh, 2015 WL 1544004, at *1-5. (Appeal dismissed because
Appellants’: (a) request for a copy of the reporter’s record, (b) motion for judgment
notwithstanding the verdict, (c) motion for new trial, (d) certificate of post-trial
written discovery, and (e), statements indicating that they will, or might have to, file
an appeal, did not constitute a bona fide attempt to invoke the appellate court’s
jurisdiction).
C. Appellant must be held to the same standard
7. Appellant also argues that the Court should hear his appeal because he
is a Pro Se litigant. (Response, ¶2, p. 4). However, “[p]ro se litigants are held to the
same standards as licensed attorneys, and they must therefore comply with all
applicable rules of procedure.” Foster, 74 S.W.3d, at 202. See also, Approximately
$8,500.00 v. State, No. 01-09-00316-CV, 2010 WL 4676986, *3 (Tex.App.-Houston
[1st Dist.] 2010, no pet.).
III. CONCLUSION AND PRAYER FOR RELIEF
8. For these reasons, Appellees ask the Court to grant their Motion to
Dismiss and to dismiss this appeal.
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Respectfully submitted,
LINEBARGER GOGGAN BLAIR
& SAMPSON, LLP
By:
Edward J. (Nick) Nicholas
State Bar No. 14991350
4828 Loop Central Drive, Suite 600
Houston, Texas 78701
(713) 844-3405 direct phone
(713) 844-3504 fax
Nick.Nicholas@lgbs.com
ATTORNEYS FOR APPELLEES
CERTIFICATE OF SERVICE
I certify that a copy of Appellees’ Motion to Dismiss was served by first-class
U.S. Mail, certified/return receipt requested, on Charles Ronald Wade, 4318
Woodmont, Houston, Texas 77045.
By:
Edward J. (Nick) Nicholas
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