                                                                                ACCEPTED
                                                                            04-15-00548-CV
                                                                FOURTH COURT OF APPEALS
                                                                     SAN ANTONIO, TEXAS
                                                                      11/24/2015 9:44:54 AM
                                                                             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 TEXAS11/24/2015 9:44:54 AM
                             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
                MOTION TO REINSTATE APPEAL

 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.    The Court lacks jurisdiction to hear this appeal because Appellant

filed her notice of appeal long after it was due. The trial court’s summary

judgment was issued on May 13, 2015 – not on July 20, 2015, as Appellant has

falsely represented numerous times since the inception of this appeal. Appellant

only had until August 11, 2015 to file her Notice of Appeal. She did not do so

until September 3, 2015, and therefore failed to invoke this Court’s jurisdiction and

thus Appellant’s Motion to Reinstate Appeal (the “Motion”) must fail.

       2.    Further, Appellant never timely filed a motion for an extension or a

response to American General’s motion to dismiss. The Court provided Appellant

with every opportunity to show cause as to why her appeal should not be

dismissed, and she refused to file anything. The Court properly dismissed this

appeal on October 28, 2015. The Motion was, not surprisingly, filed after the

deadline to seek a rehearing, and lacks any supporting authority. The Court should

deny the Motion.

II.    The Court Lacks Jurisdiction to Hear or Reinstate This Appeal.

       3.    The Court should deny the Motion because it lacks jurisdiction over

this appeal. Appellant failed to file a timely notice of appeal, and thus failed to

invoke the Court’s jurisdiction. Any attempt to reinstate the appeal is futile.




EMH514873                                 2
         4.    Contrary to Appellant’s allegations, the trial court’s summary

judgment was issued on May 13, 2015 – not July 20, 2015 (the “Judgment” is

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

dismissed with prejudice. Judgment, ¶ 3. The Judgment states that it “is a final

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

         5.    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).

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

as Exhibit 4). On that same day, she also (belatedly) filed a Motion for Extension

of Time to File Appellant’s Brief, seeking a 15-day extension to file her Notice of

Appeal.1

         7.    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


1
    The title of Appellant’s motion is obviously erroneous.

EMH514873                                  3
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.).

         8.      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). Because the Judgment

was signed on May 13, 2015, Appellant only had until August 11, 2015 to file her

Notice of Appeal. She did not do so until September 3, 2015. Appellant failed to

invoke the Court’s jurisdiction.

         9.      Since filing her Notice of Appeal, Appellant has attempted to create

the illusion of a timely filed appeal by purporting to appeal the wrong trial 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 Order is incorrect and misleading.

         10.     The May 13, 2015 Judgment – which granted summary judgment in

American General’s favor – was the only final, appealable trial court order 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.



EMH514873                                   4
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.”). It is well settled in Texas that an

order denying a motion for a new trial has no effect on an appellant’s deadline

to file a notice of appeal. 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.) (“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.”); Burnett v. DRO IP, Ltd., 13-14-

00518-CV, 2014 WL 4952767, at *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).

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

to timely file her Notice of Appeal. Her Motion to Reinstate Appeal should be

denied for the same reasons: it is moot, untimely and futile.

III.   Appellant’s Motion is Late and Not Supported By Any Authority.

       12.   In the event that a party disagrees with an appellate court’s judgment

or order, the Texas Rules of Appellate Procedure permit a party to file a motion for



EMH514873                                 5
rehearing “within 15 days after the court of appeals’ judgment or order is

rendered.” TEX. R. APP. P. 49.1. Here, the Court’s judgment was rendered on

October 28, 2015, meaning that any motion for rehearing had to be filed by

November 12, 2015. Appellant missed this deadline, so she filed her motion to

reinstate appeal on November 13th. Not only did she file the wrong type of motion,

she filed it too late.

       13.    In any event, the motion has no valid supporting authority. Appellant

bewilderingly argues that her motion is permitted under Rule 25.1(g), which

provides:

       Amending the Notice. An amended notice of appeal correcting a
       defect or omission in an earlier filed notice may be filed in the
       appellate court at any time before the appellant’s brief is filed. The
       amended notice is subject to being struck for cause on the motion of
       any party affected by the amended notice. After the appellant’s brief is
       filed, the notice may be amended only on leave of the appellate court
       and on such terms as the court may prescribe.

TEX. R. APP. P. 25.1(g). This rule is inapplicable here and Appellant’s reliance on

it makes no sense. Appellant has not made any attempt to amend her notice of

appeal. This rule is simply inapplicable and does not provide a basis for reinstating

her appeal.

       14.    The cases cited in Appellant’s motion actually support American

General’s opposition. In Sweed v. Nye, the Texas Supreme Court held that a

defective notice of appeal could be amended only if it was timely filed. 323



EMH514873                                 6
S.W.3d 873, 874 (Tex. 2010). In Warwick Towers Council of Co-Owners v. Park

Warwick, LP, the same court held that an appellant’s right to cure defects in a

notice of appeal is entirely dependent upon it being timely filed. 244 S.W.3d 838,

839 (Tex. 2008). Because Appellant’s Notice of Appeal was not timely filed, she

is not entitled to amend it or otherwise take any other action on her appeal.

IV.    There is No Good Cause to Reinstate the Appeal.

       15.   Appellant argues that the Court should reinstate this appeal because

(a) her counsel and his assistant have recently been out sick, (b) her counsel has

been busy attending to more important cases in litigation, and (c) the appeal is

purportedly meritorious. See Motion to Reinstate Appeal, at ¶¶ 3-5. None of these

reasons amount to good cause sufficient to reinstate this appeal.

       16.   American General certainly would have been willing to agree to

deadline extensions if Appellant’s counsel’s health concerns rendered him unable

to make timely filings, but no such extension requests were ever made. Next,

while counsel’s other cases may have required much time and attention, American

General should not be forced to bear the cost and expense of dealing with a

properly dismissed appeal just because Appellant’s counsel chose not to make this

case a priority. Moreover, this Court specifically ordered Appellant to show cause

by a date certain as to why her appeal should not be dismissed. Even with a busy

schedule, Appellant’s counsel could have either found time to comply with the



EMH514873                                 7
Court’s order himself or seek assistance or an extension. Like any litigant, one

who ignores a court order does so at its own peril. Appellant is no exception.

       17.    Regardless of Appellant’s opinion as to the merits of her appeal, it

was properly dismissed. The appeal should not be reinstated because the Court

lacks jurisdiction, and nothing in any of Appellant’s filings can change that. The

Court should deny Appellant’s Motion to Reinstate Appeal.

V.     Response to Appellant’s Motion Supplement.

       18.    Appellant filed a three-paragraph supplement to her motion on

November 18, 2015. The supplement does not address Appellant’s failure to

comply with the Court’s request to show cause for why her appeal should not be

dismissed. Instead, the supplement seems to have been filed for the improper

purpose of providing the Court with select portions of the trial court record for

review.

       19.    During the trial court proceedings, Appellant filed a “Motion for

Leave to File Relevant Documents and for Judicial Notice” on July 10, 2015 –

nearly two months after the Judgment was entered, and one business day prior

to the hearing on her Motion for New Trial.2 As shown by the docket sheet

attached to Appellant’s supplement, she never actually set the July 10 motion for a

2
  Appellant misleadingly refers to this as a “motion for mandatory judicial notice” in the
supplement. See Supplement, ¶ 3. The trial court was not actually required to take judicial
notice of any of the “facts” identified in Appellant’s motion, as explained in American General’s
response brief (attached hereto as Exhibit 5).


EMH514873                                      8
hearing before the Court denied Appellant’s Motion for New Trial on July 20,

2015. In other words, Appellant never properly sought or obtained leave to file

any documents from which the trial court could possibly take judicial notice.

       20.   None of this has any relevance to the central issue before the Court:

whether Appellant timely filed her Notice of Appeal and invoked the Court’s

jurisdiction. She did not. The Court should disregard the supplement and deny the

motion.

VI.    Conclusion.

       For the reasons set forth herein, the Court should deny Appellant’s Motion

to Reinstate Appeal.



                                      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


EMH514873                                9
                         CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing has been served
on the 24th day of November, 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 1,863 words, as calculated by Microsoft Word, the word processing
software used to create the document.


                                                                 a
                                         Jason A. Richardson




EMH514873                               10
