                                                                                ACCEPTED
                                                                            04-15-00548-CV
                                                                FOURTH COURT OF APPEALS
                                                                     SAN ANTONIO, TEXAS
                                                                       9/28/2015 4:22:17 PM
                                                                             KEITH HOTTLE
                                                                                     CLERK

                          NO. 04-15-00548-CV

                                                         FILED IN
                                                  4th COURT OF APPEALS
                       IN THE COURT OF APPEALS     SAN ANTONIO, TEXAS
                FOR   THE FOURTH DISTRICT OF TEXAS9/28/2015 4:22:17 PM
                             SAN ANTONIO            KEITH E. HOTTLE
                                                          Clerk


                          RUFINA REYES YANEZ

                                              Appellant,

                                    v.

                 AMERICAN GENERAL LIFE INSURANCE CO.

                                              Appellee.


ON APPEAL FROM THE 341ST JUDICIAL DISTRICT COURT OF WEBB COUNTY, TEXAS

                Trial Court Cause No. 2014CVF000504 D3


APPELLEE’S RESPONSE TO APPELLANT’S NOTICE OF COURT TO
     ABATE THE APPELLATE PROCEDURE ON THIS CASE

 David T. McDowell                EDISON, MCDOWELL & HETHERINGTON LLP
 State Bar No. 00791222           Phoenix Tower
 Jason A. Richardson              3200 Southwest Freeway, Ste. 2100
 State Bar No. 24056206           Houston, Texas 77027
 Robert P. Debelak III            Telephone: 713-337-5580
 State Bar No. 24078410           Facsimile: 713-337-8850
                                  david.mcdowell@emhllp.com
                                  jason.richardson@emhllp.com
                                  bobby.debelak@emhllp.com

                           Counsel for Appellee
I.     Introduction.

       1.      In a misguided attempt to avoid dismissal of her time-barred appeal,

Plaintiff-Appellant Rufina Reyes Yanez filed a “Notice of Court to Abate the

Appellate Procedure on This Case” (the “Notice”). The Notice is not really a

notice, but a disguised motion1 seeking an order abating these proceedings for an

indefinite period. The Court should deny the relief sought in the Notice because it

lacks jurisdiction to hear this appeal.

II.    Procedural History.

       2.      The trial court granted summary judgment in favor of Appellee

American General Life Insurance Company on May 13, 2015 (the “Judgment,”

attached as Exhibit 1). Pursuant to the Judgment, all of Appellant’s claims were

dismissed with prejudice. Judgment, ¶ 3. The Judgment further provides that it “is

a final order that dispenses with all claims before the Court.” Id.

       3.      Appellant filed her “Motion to Set Aside the May 13, 2015 Order

Granting Defendant’s Traditional Motion for Summary Judgment” on June 5, 2012

(“Motion to Set Aside,” attached as Exhibit 2). This was clearly a motion for a

new trial, as Plaintiff expressly argued that she was “entitled to a new trial because

the May 13, 2015, order deprived her of her claim for relief regarding conversion.”

1
  The Notice did not contain a certificate of conference, which is required of all motions pursuant
to Rule 10.1(a)(5) of the Texas Rules of Appellate Procedure. Appellant cannot escape this
requirement by naming her filing a “notice” as opposed to a “motion.” Appellee objects to the
Notice because of this deficiency.


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Id., ¶ 16. In her prayer, “Plaintiff ask[ed] the Court to set a hearing on her motion

for new trial and enter a written order within 75 days of May 13, 2015, setting

aside the order granting [Appellee]’s motion for a final summary judgment.” Id., ¶

19.

       4.      On June 12, 2015, Appellant filed three separate supplements to the

Motion to Set Aside, entitled as follows:

            a. “Supplemental Plaintiff’s Motion to Set Aside the May 13, 2015,
               Order Granting Defendant’s Traditional Motion for Summary
               Judgment and in the Alternative Motion for New Trial” (attached as
               Exhibit 3).

            b. “Plaintiff’s Supplement to Her Motion to Set Aside the May 13, 2015,
               Summary Judgment” (attached as Exhibit 4).

            c. “Second Supplement to Plaintiff’s Motion for New Trial” (attached as
               Exhibit 5).

       5.      The trial court denied the Motion to Set Aside “in its entirety” on July

20, 2015 (the “July 20 Order,” attached as Exhibit 6). Appellant filed her Notice

of Appeal on September 3, 2015.

III.   Legal Argument.

       6.      Appellant argues that the Court should abate this appeal because the

July 20 Order “did not address [her] Motion for New Trial.” See Notice, ¶ 2.

Appellant makes the strained argument that because she did not file a document

with the phrase “Motion for New Trial” in the title until after filing the Motion to

Set Aside, the trial court did not address her request for a new trial in the July 20

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Order. As a result, argues Appellant, her appeal is premature and should be abated

because the trial court has not yet ruled on a pending motion. This is nonsense.

         7.   A plain reading of the Motion to Set Aside reveals that Appellant

clearly moved the trial court for a new trial.2 The three documents she filed on

June 12, 2015 were supplements to the Motion to Set Aside, not separate and

distinct motions. Battin v. Samaniego, 23 S.W.3d 183, 185 (Tex. App.—El Paso

2000, pet. denied) (“An amended motion supercedes the original motion; a

supplemental motion is considered in addition to an original motion.”) (citing TEX.

R. CIV. P. 69). As such, there was only one motion before the trial court when it

issued the July 20 Order, and that motion included Appellant’s request for a new

trial.

         8.   The July 20 Order denied the Motion to Set Aside “in its entirety,”

and along with it all of Appellant’s requests for a new trial. There is nothing left

for which the trial court must still issue a ruling. Appellant’s Notice has no basis

in law or fact.

         9.   Even if the trial court had not yet issued a ruling on some pending

request for a new trial, Appellant’s Notice of Appeal was still untimely because the

filing deadline is not determined by reference to a ruling on a motion for new trial.

Pursuant to Rule 26.1(a) of the Texas Rules of Appellate Procedure, “the notice of

2
  See Surgitek, Bristol-Myers Corp. v. Abel, 997 S.W.2d 598, 601 (Tex. 1999) (“[Courts] look to
the substance of a motion to determine the relief sought, not merely to its title.”).


EMH501538                                     4
appeal must be filed within 90 days after judgment is signed if any party timely

files … a motion for new trial.” TEX. R. APP. P. 26(a)(1) (emphasis added). The

“deadline for filing her notice of appeal does not run from the date of the denial of

her motion for new trial, but rather from the date of the signing of the summary

judgment granted for appellees.” Powell v. Linh Nutrition Programs, Inc., 01-03-

00919-CV, 2005 WL 375334, at *1 (Tex. App.—Houston [1st Dist.] Feb. 17,

2005, no pet.).

       10.   Here, the Judgment was signed on May 13, 2015.             Accordingly,

Appellant only had until August 11, 2015 to file her Notice of Appeal (90 days

after the Judgment). She did not do so until September 3, 2015. As a result, the

Court lacks jurisdiction for this matter and should dismiss, not abate, this appeal as

a matter of law.

IV.    Conclusion.

       For the reasons set forth herein and in Appellee’s Motion to Dismiss, the

Court should deny the request for relief in Appellant’s Notice and dismiss this

appeal for want of jurisdiction.




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                                      Respectfully submitted,

                                      EDISON, MCDOWELL & HETHERINGTON LLP


                                         By:                        a
                                           David T. McDowell
                                           State Bar No. 00791222
                                           Jason A. Richardson
                                           State Bar No. 24056206
                                           Robert P. Debelak III
                                           State Bar No. 24078410
                                           3200 Southwest Freeway, Suite 2100
                                           Houston, Texas 77027
                                           Telephone: 713-337-5580
                                           Facsimile: 713-337-8850
                                           Attorneys for the Appellee



                         CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing has been served
on the 28th day of September, 2015, on the following counsel of record by US Mail
and email:

Armando Trevino
1519 Washington St., Suite One
Laredo, TX 78042-0544
armando_trevinolaw@hotmail.com
armandotrevinolaw@gmail.com



                                                                 a
                                         Jason A. Richardson




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                    CERTIFICATE OF COMPLIANCE

      Per Texas Rule of Appellate Procedure 9.4(i), I hereby certify that this
document has 954 words, as calculated by Microsoft Word, the word processing
software used to create the document.


                                                             a
                                       Jason A. Richardson




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