                                                                                ACCEPTED
                                                                            04-15-00548-CV
                                                                FOURTH COURT OF APPEALS
                                                                     SAN ANTONIO, TEXAS
                                                                       9/16/2015 3:05:21 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 TEXAS09/16/15 3:05:21 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 MOTION TO DISMISS

 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.    Plaintiff-Appellant Rufina Reyes Yanez filed her notice of appeal

long after it was due. Her motion for an extension was also untimely. The Court

lacks jurisdiction to hear her appeal, and should therefore dismiss it in its entirety.

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

(the “Motion for New Trial,” attached as Exhibit 2). That motion was denied on

July 20, 2015 (the “July 20 Order,” attached as Exhibit 3).

         4.    Appellant filed her Notice of Appeal on September 3, 2015 (attached

as Exhibit 4). On that same day, she also filed a Motion for Extension of Time to

File Appellant’s Brief, in which she sought an extension of 15 days to file her

Notice of Appeal.1




1
    The title of Appellant’s motion is obviously erroneous.
                                           2
III.   Legal Argument.

A.     Plaintiff Failed to File Her Notice of Appeal Within 90 Days of the Date
       the Judgment was Signed.

       5.    In Texas, a court of appeals only “has jurisdiction over an appeal if

the appellant timely files an instrument in a bona fide attempt to invoke the

appellate court’s jurisdiction. In re K.A.F., 160 S.W.3d 923, 927 (Tex. 2005). If

an appellant fails to file a timely notice of appeal, she will not invoke the court’s

appellate jurisdiction. Ex parte Matthews, 452 S.W.3d 8, 14 (Tex. App.—San

Antonio 2014, no pet.). Further, “[w]hen a notice of appeal is filed late and

appellant fails to timely file a motion for extension of time, the appellate court

lacks jurisdiction.” Torres v. State, 04-03-00913-CR, 2004 WL 572346, at *1

(Tex. App.—San Antonio Mar. 24, 2004, no pet.).

       6.    Appellant’s Notice of Appeal is impermissibly late. Pursuant to Rule

26.1(a) of the Texas Rules of Appellate Procedure, “the notice of 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). Here, the Judgment was

signed on May 13, 2015. Accordingly, Appellant only had until August 11, 2015

to file her Notice of Appeal. She did not do so until September 3, 2015. Even if

the Court grants Appellant’s request for an extension of 15 days (up to August 26,

2015), Appellant’s Notice of Appeal would still be untimely. Her appeal should be

dismissed for lack of jurisdiction.
                                         3
B.    The Order Denying Appellant’s Motion for New Trial Does Not Trigger
      Her Appellate Deadlines.

      7.     Appellant is attempting to create the illusion of a timely filed appeal

by purporting to appeal the wrong court order. Here, Appellant states that she

desires to appeal “the final summary judgment that was rendered on July 20,

2015.” See Notice of Appeal (Exh. 4). Her characterization of the July 20 is

incorrect and misleading.

      8.     The Judgment, which granted summary judgment in American

General’s favor, was the only final, appealable order from the trial court that could

trigger the appellate deadlines.    See Judgment.      The July 20 Order was an

interlocutory order that merely denied Appellant’s Motion for New Trial, and did

not deny any of Appellant’s claims. See July 20 Order. Sechrest v. Blackwell, No.

11-11-00271-CV, 2012 WL 690222, at *2 (Tex. App.—Eastland Mar. 1, 2012, no

pet.) (“The May 26 written order denies a motion for new trial and is, therefore,

not a final judgment or an appealable order.”).

      9.     In a case directly on point, the First Court of Appeals explained that

“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.); Burnett v. DRO IP, Ltd., 13-14-00518-CV, 2014 WL 4952767, at
                                          4
*1 (Tex. App.—Corpus Christi Oct. 2, 2014, no pet.) (“the deadline for filing the

notice of appeal does not run from the date of the denial of the motion for new

trial, but rather from the date of the judgment.”); J.E. Shaunfield Family Ltd. P'ship

v. BMW of Dallas, 05-12-00880-CV, 2012 WL 4753523, at *1 (Tex. App.—Dallas

Oct. 4, 2012, no pet.) (same). This is an error that cannot be cured with a motion

for extension or excused as a result of good faith error. See Burnett, 2014 WL

4952767, at * 1 (Holding that although appellant provided a reasonable

explanation regarding his late filing of the notice of appeal, the appellate court

lacks jurisdiction after the expiration of the 15-day grace period provided by Rule

26.3); J.E. Shaunfield Family, 2012 WL 4753523, at *1 (same).

   IV.      Conclusion.

      10.     Appellant has failed to invoke this Court’s jurisdiction because she

failed to timely file her Notice of Appeal. She is not saved by her motion for an

extension because she filed it outside the 15-day window permitted by Rule 26.1.

American General respectfully requests pursuant to Rule 42.3(a) of the Texas

Rules of Appellate Procedure that the Court grant this motion and dismiss this

appeal in whole for want of jurisdiction.




                                            5
                                     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 CONFERENCE

I hereby certify that I attempted to meet and confer with Appellant’s counsel
regarding this motion as follows:

On Thursday, September 10, 2015 at 4:42 PM, I sent an email to Appellant’s
counsel, Armando Trevino, setting forth the issues identified in this motion, and
requested an appointment to speak with him the next day. Mr. Trevino did not
respond.

On Tuesday, September 15, 2015 at 2:25 PM, I called Mr. Trevino’s office, but
was told he was unavailable to speak with me. Immediately after that call I sent
another email to Mr. Trevino to follow up on my prior email and once again
request an appointment to speak about the foregoing issues. Mr. Trevino did not
respond.

On Wednesday, September 16, 2015 at 2:30 PM, I again called Mr. Trevino’s
office, but, like before, was told that he was unavailable.




                                       6
Given Mr. Trevino’s lack of responses to my communications, I cannot make a
representation to the Court regarding Appellant’s position on this motion. Given
that the motion seeks a complete dismissal of the appeal, it is highly likely that
Appellant does not agree to the relief requested herein.



                                                                  a
                                         Jason A. Richardson


                         CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing has been served
on the 16th 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



                      CERTIFICATE OF COMPLIANCE

      Per Texas Rule of Appellate Procedure 9.4(i), I hereby certify that this
document has 929 words, as calculated by Microsoft Word, the word processing
software used to create the document.


                                                                  a
                                         Jason A. Richardson

                                         7
