                                                                                          ACCEPTED
                                                                                      04-15-00097-CV
                                                                          FOURTH COURT OF APPEALS
                                                                               SAN ANTONIO, TEXAS
                                                                                4/27/2015 12:23:45 PM
                                                                                       KEITH HOTTLE
                                                                                               CLERK

                             NO. 04-15-00097-CV

             IN THE FOURTH COURT OF APPEALS DISTRICT FILED IN
                       SAN ANTONIO, TEXAS        4th COURT OF APPEALS
                                                  SAN ANTONIO, TEXAS
                                                             04/27/2015 12:23:45 PM
                                    *   *    *                  KEITH E. HOTTLE
                                                                      Clerk
                                 BRIAN McENERY,
                                                       Appellant

                                        V.

         CITY OF SAN ANTONIO and CHIEF CHARLES N. HOOD,
                                           Appellees


     MOTION TO DISMISS APPEAL FOR LACK OF JURISDICTION

THE CITY OF SAN ANTONIO                      THE LAW OFFICE OF
Deborah Lynne Klein                          JACQUELINE M. STROH, P.C.
State Bar No. 11556750                       Jacqueline M. Stroh
Office of the City Attorney                  State Bar No. 00791747
Litigation Division                          10101 Reunion Place, Suite 600
111 Soledad Street, 10th Floor               San Antonio, Texas 78216
San Antonio, Texas 78205                     (210) 477-7416
(210) 207-8784                               (210) 477-7466 (telecopier)
(210) 207-4357 (telecopier)                  jackie@strohappellate.com
deborah.klein@sanantonio.gov

FITZPATRICK & KOSANOVICH, P.C.
Mark Kosanovich
State Bar No. 00788754
P.O. Box 831121
San Antonio, Texas 78283-1121
(210) 207-7259
(210) 207-8997 (telecopier)
mark.kosanovich@sanantonio.gov

      ATTORNEYS FOR APPELLEES, CITY OF SAN ANTONIO AND
                   CHIEF CHARLES N. HOOD
TO THE HONORABLE JUSTICES OF SAID COURT:

      COME NOW, the City of San Antonio and Chief Charles N. Hood,

Appellees in the above-entitled and numbered cause, and file this, their Motion to

Dismiss Appeal for Lack of Jurisdiction, and, in support thereof, would

respectfully show unto the Court the following:

                                       I.
                            Background and Summary

      On November 25, 2014, the trial court signed a Final Judgment in favor of

the Defendants confirming the underlying arbitration decision and awarding all

costs of court against Appellant Brian McEnery. (CR 34-45, 113) On that same

day, McEnery filed a Request for Findings of Fact and Conclusions of Law; and,

on December 24, 2014, McEnery filed a Motion for New Trial. (CR 114-16, 117-

20) McEnery did not file his notice of appeal until February 23, 2015. (CR 121-

24) Because neither a request for findings and conclusions nor a motion for new

trial could extend the time to appeal, McEnery’s notice of appeal came too late;

and this Court must dismiss for lack of jurisdiction.

      Specifically, neither a request for findings of fact and conclusions of law nor

a motion for new trial were appropriately directed to the trial court – which sat, not

as a fact finder, but as a reviewing tribunal asked to determine the legal question of

whether the arbitration decision could stand under a substantial evidence standard

of review. Because McEnery’s post-judgment filings were, in effect, nullities, they

                                          2
could not extend the time for perfecting an appeal. As a result, McEnery’s notice

of appeal, filed more than 30 days after the trial court’s Final Judgment, is

untimely and cannot vest the Court with jurisdiction over his appeal.

                                       II.
                             Argument and Authorities

A.    A Notice of Appeal Generally Falls Due 30 Days After the Judgment Is
      Signed

      Generally speaking, a notice of appeal is due to be filed within 30 days after

the judgment is signed. TEX. R. APP. P. 26.1. An appellate court may extend the

time to file an appeal, but only if the notice of appeal and/or a motion to extend the

time to file the notice is itself filed within 15 days after the deadline for filing the

notice of appeal. TEX. R. APP. P. 26.3. Here, the Final Judgment was signed on

November 25, 2014. (CR 113) As a result, the notice of appeal was due to be filed

Monday, December 29, 2014. See TEX. R. APP. P. 4.1(a) (“The last day of the

period is included, but if that day is a Saturday, Sunday, or legal holiday, the

period extends to the end of the next day that is not a Saturday, Sunday, or legal

holiday.”). Appellant McEnery never requested any extension and did not file a

notice of appeal until February 23, 2015. (CR 121-24) Even with the potential

extension period applied, McEnery’s notice of appeal was late.




                                           3
      B.     A Request for Findings of Fact and Conclusions of Law Does Not
             Extend the Time to Appeal from a Trial Court’s Review of an
             Arbitration Decision under a Substantial Evidence Standard

      One assumes that Appellant McEnery is relying on the request for findings

of fact and conclusions of law and/or on the motion for new trial he filed in the

trial court to extend the time to perfect an appeal pursuant to Rule 26.1(a). In some

instances, a timely motion for new trial or request for findings of fact and

conclusions of law extends the time to file an appeal to 90 days after the judgment

is signed. TEX. R. APP. P. 26.1(a)(1), (4). But any reliance by McEnery on his

post-judgment filings to extend the time to appeal in the context of this case would

be wholly misplaced.

      Though McEnery requested that the trial court issue findings of fact and

conclusions of law, his request was improper given the trial court’s limited role in

this proceeding, i.e., to review the arbitration decision in an appellate capacity

under the substantial evidence standard. See TEX. R. CIV. P. 296 (“In any case

tried in the district or county court without a jury, any party may request the court

to state in writing its findings of fact and conclusions of law.”) (emphasis added).

In reviewing an arbitration decision under that standard, a trial court makes no

factual determinations; rather, it resolves a question of law and does so in an

appellate capacity. See, e.g., Texas Dep’t of Pub. Safety v. Alford, 209 S.W.3d

101, 103 (Tex. 2006) (“[W]hether there is substantial evidence to support an


                                         4
administrative decision is a question of law.”); Cooper v. City of Dallas, 229

S.W.3d 860, 864 n.1 (Tex. App. – Dallas 2007, pet. denied) (holding that police

officer’s challenge to ALJ’s decision to reinstate him without back pay was subject

to substantial evidence review and, thus, presented a question of law); In re

Edwards Aquifer Auth., 217 S.W.3d 581, 587 (Tex. App. – San Antonio 2006,

orig. proceeding) (“Review under the substantial evidence rule presents purely a

legal issue, and a trial of the fact issues by a judge or jury is avoided.”); Valentino

v. City of Houston, 674 S.W.2d 813, 820 (Tex. App. – Houston [1st Dist.] 1984,

writ ref’d n.r.e.) (“The very nature of review under the substantial evidence rule

inherently precludes the necessity of filing findings of fact. Indeed, there are no

‘facts’ to be found by the trial court; that reviewing body must defer to the fact-

finding of the administrative body and limit its inquiry simply to whether there

exists substantial evidence to reasonably support the particular order. Thus, the

question presented to the district court is one of law, not of fact.”); Tilley v. Rogers,

405 S.W.2d 220, 222 (Tex.Civ.App. – Beaumont 1966, writ ref’d n.r.e.) (holding

that determination regarding whether substantial evidence supported municipal

action was legal conclusion, rendering it unnecessary for court to file findings of

fact and conclusions of law as would be required in ordinary civil suit), citing

Thomas v. Stanolind Oil & Gas Co., 145 Tex. 270, 198 S.W.2d 420, 421 (1946)

(whether substantial evidence affords reasonable support for findings and orders of


                                           5
administrative agency is question of law); see also G.E. American Communication

v. Galveston Central Appraisal Dist., 979 S.W.2d 761, 765 (Tex. App. – Houston

[14th Dist.] 1998, no pet.) (holding that, even when review is under hybrid

“substantial evidence do novo” standard and even when new evidence is

introduced at the review hearing, “review is purely a question of law, and the

proceeding is truly an appeal”).

      When a party files a request for findings and conclusions that is

inappropriate, the document does not extend the time for perfecting an appeal.

Linwood v. NCNB Tex., 885 S.W.2d 102, 103 (Tex. 1994) (“Because findings of

fact and conclusions of law have no place in a summary judgment proceeding, the

timetable was not extended.”); Galindo v. Texas Workforce Comm’n, No. 05-11-

01627-CV, 2012 WL 1470153, *1 (Tex. App. – Dallas, Apr. 26, 2012, no pet.)

(mem. op.) (“Findings of fact and conclusions of law in an appeal from a TWC

decision denying unemployment benefits, however, are neither required by the

rules of civil procedure nor properly considered by the appellate court”; because

the time to appeal was not extended, notice of appeal was untimely; and appeal

was dismissed for lack of jurisdiction); Madisonville Consol. Indep. Sch. Dist. v.

Texas Employment Comm’n, 821 S.W.2d 310, 314 (Tex. App. – Corpus Christi

1991, writ denied) (holding that “whether there is substantial evidence to support

the Commission’s decision is purely a question of law. . . . Therefore, even if


                                        6
requested, the trial court need not and should not file findings of fact and

conclusions of law following the rendition of judgment in an administrative

appeal.”).

       Not only did McEnery’s petition present a question of law to the trial court,

but it did so in the trial court’s capacity as an appellate tribunal. As a result,

McEnery’s request for findings and conclusions did not extend the time to take an

appeal, leaving December 29, 2014 as the deadline for McEnery to have filed his

notice. His notice of appeal, which was not filed until February 23, 2015, came too

late; and this Court lacks jurisdiction. Berburgt v. Dorner, 959 S.W.2d 615, 617

(Tex. 1997) (“[O]nce the period for granting a motion for extension of time under

Rule [26.3] has passed, a party can no longer invoke the appellate court’s

jurisdiction.”).

       C.     Similarly, a Motion for New Trial Cannot Extend the Time for
              Perfecting an Appeal When the Trial Court Acts in an Appellate
              Capacity

       Just as with the request for findings and conclusions filed by McEnery, a

motion for new trial is inappropriate and, indeed, a nullity following the trial

court’s ruling in what can only be seen as an appellate capacity, i.e., in reviewing

the arbitration award under the substantial evidence standard. The trial court had

no obligation – and, indeed, no authority – to consider and grant a motion for new

trial in this context. Rather, that function (along with the issuance of findings of


                                         7
fact and conclusions of law) is one performed by courts that try cases in the first

instance. See, e.g., D/FW Commercial Roofing Co., Inc. v. Mehra, 854 S.W.2d

182, 189 (Tex. App. – Dallas 1993, no writ) (explaining that primary purpose of

motion for new trial is to give trial judge opportunity to cure any errors by granting

a new trial); Texas Dep’t of Public Safety v. Shelberg, No. 13-04-00100-CV, 2005

WL 1981488, *1 (Tex. App. – Corpus Christi, Aug. 18, 2005, no pet.) (mem. op.)

(‘”the administrative law judge-not the trial court-is the fact finder in an

administrative hearing”); see also TEX. R. CIV. P. 320, et seq. (referring to grant of

new trial by court in which matter was heard initially).

      This case was tried to an arbitrator, and suit was filed in district court to

review the arbitrator’s decision under the substantial evidence standard. See, e.g.,

TEX. LOC. GOV’T CODE § 214.0012(f) (referencing district court’s substantial

evidence review of municipal order on substandard nature of structure as

“appeal”); Cooper, 229 S.W.3d at 864 (referencing challenge of decision by police

officer to district court under substantial evidence standard of review as an

“appeal”); In re Edwards Aquifer Auth., 217 S.W.3d at 588 (referencing challenge

to Authority’s permitting order under substantial evidence standard as “an

appeal”). As a result, rules providing for the filing of a motion for new trial

following a trial by the district court in the first instance do not apply and do not

extend the time to perfect an appeal.


                                          8
       In an analogous circumstance, the Fort Worth Court of Appeals recognized

the impropriety of filing a motion for new trial and the ineffectiveness of any such

filing. Specifically, in Swain v. State, 319 S.W.3d 878, 878-79 (Tex. App. – Fort

Worth 2010, no pet.) (per curiam), an individual who had appealed unsuccessfully

his conviction by a municipal court of record to the county criminal court

thereafter attempted to file a motion for new trial with the county court. The Swain

court recognized that the county court was exercising appellate jurisdiction and

that the granting of a motion for new trial lies within the discretion of the court that

tried the case in the first instance. Id. at 880 (“It is well established that the

granting or denying of a motion for new trial lies within the discretion of the trial

court.”) (emphasis in original).

       As a result, the Swain court held that the motion for new trial was a nullity

and could not extend the time to perfect an appeal, requiring the court to dismiss

the appeal for lack of jurisdiction. 319 S.W.3d at 880, citing Lewis v. State, 911

S.W.2d 1, 7 (Tex.Crim.App. 1995); see also Rogers v. State Board of Public

Accountancy, 310 S.W.3d 1, 4 n.4 (Tex. App. – Austin 2008, no pet.) (explaining

that Rule 324(b) did not apply in context of judicial review of Board’s order under

substantial evidence standard).1


1
  Appellee acknowledges the Court’s decision in Texas Dep’t of Pub. Safety v. Fecci, 989
S.W.2d 135, 137-38 (Tex. App. – San Antonio 1999, pet. denied), in which the Court permitted a
motion for rehearing to extend the time to take an appeal from the trial court’s judgment upon
                                              9
       Thus, McEnery’s motion for new trial likewise was a nullity and could not

extend the timeline for perfecting an appeal. See, e.g., Hammack v. State, 963

S.W.2d 199, 200-01 (Tex. App. – Austin 1998, no pet.) (“Hammack was not

entitled to move for a new trial following the district court’s decision to defer

adjudication, and his motion for new trial was a nullity. . . . The filing of the

motion for new trial did not extend the time for filing notice of appeal under either

rule 26.2(a)(2) or former rule 41(b)(1).”), citing State v. Davenport, 866 S.W.2d

767, 770 (Tex. App. – San Antonio 1993, no pet.). As a result, McEnery’s notice

of appeal was due thirty days after the trial court signed its final judgment. See

TEX. R. APP. P. 26.2(a)(1) (notice of appeal must be filed within thirty days after

court enters appealable order). Because McEnery filed his attempted appeal too

late, the Court lacks jurisdiction. Payne v. Torres, No. 04-12-00017-CV, 2012 WL

752019, *1 (Tex. App. – San Antonio, Mar. 7, 2012, no pet.) (mem. op.)

(dismissing appeal for lack of jurisdiction where notice of appeal was late “[e]ven

considering the maximum extended period allowed under the rules”). The Court

should dismiss this appeal.



review of an administrative ruling under the substantial evidence standard. Even assuming the
correctness of that holding, here, however, Appellant McEnery filed only a motion for new trial.
(CR 117-20) He did not file a motion for rehearing or a motion to modify, correct, or reform the
judgment. (CR 117-20) Indeed, repeatedly throughout the motion for new trial, McEnery
limited his requested relief to a “new trial.” (CR 117-20) The district court could never have
held a trial, old or new, because it was acting in an appellate capacity only. As a result, the
motion for new trial could not extend the time to perfect an appeal.
                                              10
       WHEREFORE, PREMISES CONSIDERED, Appellees the City of San

Antonio and Chief Charles N. Hood respectfully request that the Court grant their

Motion to Dismiss Appeal for Lack of Jurisdiction, dismiss McEnery’s appeal for

lack of jurisdiction, and grant Appellees such other and further relief to which they

are entitled.

                              Respectfully submitted,

THE CITY OF SAN ANTONIO                        THE LAW OFFICE OF
Deborah Lynne Klein                            JACQUELINE M. STROH, P.C.
State Bar No. 11556750                         Jacqueline M. Stroh
Office of the City Attorney                    State Bar No. 00791747
Litigation Division                            10101 Reunion Place, Suite 600
111 Soledad Street, 10th Floor                 San Antonio, Texas 78216
San Antonio, Texas 78205                       (210) 477-7416
(210) 207-8784                                 (210) 477-7466 (telecopier)
(210) 207-4357 (telecopier)                    jackie@strohappellate.com
deborah.klein@sanantonio.gov

FITZPATRICK & KOSANOVICH, P.C.
Mark Kosanovich
State Bar No. 00788754
P.O. Box 831121
San Antonio, Texas 78283-1121
(210) 207-7259
(210) 207-8997 (telecopier)
mark.kosanovich@sanantonio.gov

                   By:           /s/ Jacqueline M. Stroh
                                 Jacqueline M. Stroh

       ATTORNEYS FOR APPELLEES, CITY OF SAN ANTONIO AND
                    CHIEF CHARLES N. HOOD




                                         11
                     CERTIFICATE OF CONFERENCE

      I certify that I conferred with counsel for Appellant, Mr. Floyd Contreras

regarding this motion; and Mr. Contreras stated that Appellant is opposed.

                                                   /s/ Jacqueline M. Stroh
                                                   Jacqueline M. Stroh

                         CERTIFICATE OF SERVICE

      I certify that a true copy of the foregoing motion was on this the 27th day of

April, 2015, served on the following counsel of record in accordance with the

Texas Rules of Appellate Procedure:

      Ronald B. Prince
      Floyd Steven Contreras
      Prince Contreras PLLC
      417 San Pedro Avenue
      San Antonio, Texas 78212
      ron@princecontreras.com
      floyd@princecontreras.com
      Attorneys for Appellant

      Mr. Ricky J. Poole
      Law Office of Ricky J. Poole
      The Forum Building
      8000 IH-10 West, Suite 600
      San Antonio, Texas 78230
      rpoole@alamocityattorney.com
      Attorney for Intervenor

                                                   /s/ Jacqueline M. Stroh
                                                   Jacqueline M. Stroh




                                        12
