                                                                                             ACCEPTED
                                                                                          06-15-00080-cv
                                                                              SIXTH COURT OF APPEALS
                                                                                    TEXARKANA, TEXAS
                                                                                    11/2/2015 1:03:56 PM
                                                                                        DEBBIE AUTREY
                                                                                                  CLERK

                              NO. 06-15-00080-CV

                                                                   FILED IN
                      IN THE COURT OF APPEALS    6th COURT OF APPEALS
                  SIXTH JUDICIAL DISTRICT OF TEXAS TEXARKANA, TEXAS
                                                 11/2/2015 1:03:56 PM
                          TEXARKANA, TEXAS
                                                                 DEBBIE AUTREY
                                                                    Clerk

                              JOHN W. BOWERS,

                                                               APPELLANT,

                                         v.

  BANK OF AMERICA, NA, AS SUCCESSOR BY MERGER TO BAC
 HOME LOANS SERVICING, LP f/k/a COUNTRYWIDE HOME LOANS
                    SERVICING, LP,

                                                               APPELLEE.


                 Appeal from the 345TH Judicial District Court
                            Travis County, Texas
                   Trial Court Case No. D-1-GN-12-002006
                        Hon. Karen Crump, Presiding

   REPLY IN SUPPORT OF APPELLEE’S MOTION TO DISMISS FOR
                  WANT OF JURISDICTION


TO THE HONORABLE COURT OF APPEALS:

      COMES NOW, Appellee Bank of America, NA, as Successor by Merger to

BAC Home Loans Servicing, LP f/k/a Countrywide Home Loans Servicing, LP

(“Appellee”), and files this its Reply in Support of Appellee’s Motion to Dismiss

for Want of Jurisdiction, and respectfully shows as follows:


REPLY IN SUPPORT OF APPELLEE’S MOTION TO DISMISS FOR WANT OF
JURISDICTION—PAGE 1
                                          I.

      1.    Appellant John W. Bowers (“Appellant”) in his Response argues that

his Notice of Appeal (“NOA”), filed on September 10, 2015, was timely because it

was filed thirty days after his Motion for New Trial (“MNT”) was overruled by

operation of law. See Response, p.1. Appellant’s argument is unfounded because

(a) his deadline to file his notice of appeal did not depend upon when his MNT was

overruled by operation of law and (b) Appellant’s NOA was nevertheless filed

more than 30 days after his MNT was overruled by operation of law.

      Appellant’s NOA was due 90 after the Judgment was signed

      2.    Texas Rule of Appellate Procedure 26.1(a) provides that notices of

appeal, when a motion for new trial is timely filed, are due 90 days after the

judgment is signed. TEX. R. APP. P. 26.1(a); Brighton v. Koss, 415 S.W.3d 864,

866 (Tex. 2013). Here, the Trial Court signed its Judgment on April 29, 2015. See

Exhibit A to Appellant’s Motion. Appellant timely filed his MNT on May 29,

2015. See Exhibit B to Appellant’s Motion. Under TRAP 26.1(a), the deadline for

Appellant to file his NOA was July 28, 2015. TEX. R. APP. P. 26.1(a). Appellant’s

NOA filed on September 10, 2015 was thus untimely. Roth v. Raatz, No. 03-02-

00735-CV, 2003 Tex. App. LEXIS 868 *2-7 (Tex. App.—Austin Jan. 30, 2003, no

pet.) (expressly rejecting Appellant’s argument).




REPLY IN SUPPORT OF APPELLEE’S MOTION TO DISMISS FOR WANT OF
JURISDICTION—PAGE 2
      Appellant’s NOA was filed more than 30 days after Appellant’s MNT was
      overruled by operation of law.

      3.     Texas Rule of Civil Procedure 329b(e) provides that a trial court

retains jurisdiction to grant a motion for new trial up to thirty days after a timely

filed motion for new trial is denied, either by operation of law or express order,

whichever occurs first. TEX. R. CIV. P. 329b(e); In re Baylor Med. Ctr. at Garland,

280 S.W.3d 227, 230 (Tex. 2008). Appellant in his Response seems to think that,

because his MNT was allegedly not overruled by operation of law until August 12,

2015 (75 days after Appellant filed his MNT on May 29, 2015), then his NOA

filed on September 10, 2015 was timely. See Response, p.1.

      4.     As indicated above, when the Trial Court (which never granted a new

trial or otherwise changed the judgment in the underlying proceedings) lost plenary

jurisdiction is irrelevant as to when Appellant’s NOA was due. See TEX. R. APP. P.

26.1(a); Roth, 2003 Tex. App. LEXIS 868 *2-7 (holding that when motion for new

trial is overruled has no bearing on when notice of appeal is due). But even if

Appellant were right that he could file his MNT within thirty days after his MNT

was overruled by operation of law, he still did not do that.

      5.     Texas Rule of Civil Procedure 329b(c) clearly provides that motions

for new trial are overruled by operation of law thirty days after judgment is signed.

TEX. R. CIV. P. 329b(c); In re Barber, 982 S.W.2d 364, 367 (Tex. 1998).



REPLY IN SUPPORT OF APPELLEE’S MOTION TO DISMISS FOR WANT OF
JURISDICTION—PAGE 3
Appellant in his Response incorrectly states that motions for new trial are

overruled by operation of law 75 after they are filed. Id. Here, the Trial Court

signed its Judgment on April 29, 2015. See Exhibit A to Appellant’s Motion.

Appellant’s MNT was thus overruled by operation of law 75 days later—on July

13, 2015. Under Appellant’s erroneous belief that he could file MNT within 30

days after occurred, his MNT would have been due on August 12, 2015.

Accordingly, Appellant’s MNT filed on September 10, 20151, was untimely even

under his own theory.

       WHEREFORE, PREMISES CONSIDERED, Appellee respectfully requests

the Court dismiss Appellant’s appeal for want of jurisdiction and provide Appellee

with all other and further relief to which it may be entitled.




1
 Appellee in its Motion to Dismiss incorrectly stated that Appellant filed his NOA on September
14, 2015, when it was actually filed on September 10, 2015. As indicated above, this error
makes no difference as to the untimeliness of Appellant’s NOA.

REPLY IN SUPPORT OF APPELLEE’S MOTION TO DISMISS FOR WANT OF
JURISDICTION—PAGE 4
                                     Respectfully submitted,

                                     By: /s/ Mark D. Cronenwett
                                         MARK D. CRONENWETT
                                         Texas Bar No. 00787303
                                         mcronenwett@mwzmlaw.com
                                     MACKIE WOLF ZIENTZ & MANN, PC
                                     14160 N. Dallas Parkway, Suite 900
                                     Dallas, Texas 75254
                                     Telephone: (214) 635-2670
                                     Facsimile: (214) 635-2686 (Fax)

                                     ATTORNEYS FOR APPELLEE BANK
                                     OF AMERICA, NA, AS SUCCESSOR
                                     BY MERGER TO BAC HOME LOANS
                                     SERVICING, LP f/k/a COUNTRYWIDE
                                     HOME LOANS SERVICING, LP




                        CERTIFICATE OF SERVICE
      The undersigned certifies that on the 2nd day of November, 2015, a true and
correct copy of the foregoing document was delivered to the following counsel of
record in the manner described:

      Via Regular U.S. Mail
      Robert S. Koelsch
      P.O. Box 4790
      Lago Vista, TX 78645-0008

                                       /s/ Mark D. Cronenwett
                                      MARK D. CRONENWETT




REPLY IN SUPPORT OF APPELLEE’S MOTION TO DISMISS FOR WANT OF
JURISDICTION—PAGE 5
