Fidelity Investment Limited v. Xiaodong Li ( 2016 )

Opinion issued March 8, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-16-00023-CV
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FIDELITY INVESTMENT LIMITED, Appellant
V.
XIAODONG LI, Appellee
On Appeal from the 334th District Court
Harris County, Texas
Trial Court Case No. 2013-37945
MEMORANDUM OPINION
Appellant, Fidelity Investment Limited, seeks to appeal from a default
judgment signed by the trial court on July 31, 2015. Fidelity filed a motion to extend
the time to file its notice of appeal in this Court to attempt to make its notice of
appeal, filed on January 7, 2016, timely after its notice of removal to federal court
was denied and the case was remanded to state court. The appellee, Xiaodong Li,
filed a response in opposition to Fidelity’s motion, contending that the notice of
appeal was untimely filed because Fidelity’s explanation was unreasonable. We
agree, deny the motion, and dismiss the appeal for want of jurisdiction.
Generally, a notice of appeal is due within thirty days after the judgment is
signed. See TEX. R. APP. P. 26.1. The deadline to file a notice of appeal is extended
to ninety days after the date the judgment is signed if, within thirty days after the
judgment is signed, any party files a motion for new trial, motion to modify the
judgment, motion to reinstate, or, under certain circumstances, a request for findings
of fact and conclusions of law. Id.; TEX. R. CIV. P. 329b(a), (g). The time to file a
notice of appeal may also be extended if, within fifteen days after the deadline to file
the notice of appeal, a party properly files a motion for extension. See TEX. R. APP.
P. 10.5(b), 26.3. A motion for extension of time is necessarily implied when an
appellant, acting in good faith, files a notice of appeal beyond the time allowed by
rule 26.1, but within the fifteen-day extension period provided by rule 26.3. See
TEX. R. APP. P. 26.1, 26.3; Verburgt v. Dorner, 959 S.W.2d 615, 617–18 (Tex.
1997).
The clerk’s record, filed in this Court on February 23, 2016, reflects that Li
filed an amended petition on December 23, 2013, and moved for a default judgment
on July 23, 2014. The trial court signed the default judgment on July 31, 2015.
Fidelity timely filed a motion for new trial and special appearance, contesting
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personal jurisdiction, on August 28, 2015. See TEX. R. CIV. P. 120a(1), 329b.
Therefore, Fidelity’s appellate deadline was extended for ninety days from July 31,
2015, until October 29, 2015. See TEX. R. APP. P. 26.1(a)(1). Fidelity’s fifteen-day
extension period ended on November 13, 2015. See id. 26.3(a). Fidelity’s notice of
appeal, filed in the trial court on January 7, 2016, would be untimely filed fifty-five
days after November 13, 2015, unless the removal tolled this extension period.
Fidelity filed its notice of removal on November 6, 2015, eight days into the
fifteen-day extension period, leaving seven days upon remand. Fidelity filed its
notice of appeal on January 7, 2016, and filed a motion to extend the deadline to file
its notice of appeal in this Court on January 28, 2016. See TEX. R. APP. P. 26.3.
Assuming arguendo that Fidelity’s notice of removal tolled the fifteen-day grace
period from November 6, 2015, until December 31, 2015, when the case was
remanded, Fidelity’s appeal was filed seven days after remand. See 28 U.S.C. §
1447(c) (stating that “[i]f at any time before final judgment it appears that the district
court lacks subject matter jurisdiction, the case shall be remanded,” and then “[t]he
State court may thereupon proceed with such case”); see also Quaestor Invs., Inc. v.
State of Chiapas, 997 S.W.2d 226, 227 (Tex. 1999) (holding that “appellate
timetable recommences upon the revesting of jurisdiction in the state court, which
occurs when the federal district court executes the remand order and mails a certified
copy of the remand order to the state court,” but concluding that appellant untimely
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filed its petition for writ of error). Thus, Fidelity’s notice of appeal was filed within
the fifteen-day grace period after remand, and a motion for extension is necessarily
implied. See TEX. R. APP. P. 26.3(a); Verburgt, 959 S.W.2d at 617–18.
Fidelity was still required, however, to offer a reasonable explanation of the
need for an extension of time to file its notice of appeal. See TEX. R. APP. P.
10.5(b)(1)(C), (b)(2)(A), 26.3(b); Jones v. City of Houston, 976 S.W.2d 676, 677
(Tex. 1998). The Texas Supreme Court has defined “reasonable explanation” to
mean “‘any plausible statement of circumstance indicating that failure to file within
the [required] period was not deliberate[] or intentional, but was the result of
inadvertence, mistake, or mischance.’” Zhao v. Lone Star Engine Installation Ctr.,
No. 05-09-01055-CV, 2009 WL 3177578, at *1 (Tex. App.—Dallas Oct. 6, 2009,
pet. denied) (per curiam) (mem. op.) (quoting Garcia v. Kastner Farms, Inc., 774
S.W.2d 668, 670 (Tex. 1989)).
Here, Fidelity’s counsel claimed that he was substituted in for Fidelity’s
former counsel on October 14, 2015, eight days after Fidelity’s special appearance
had been denied on October 6, 2015. Fidelity’s new counsel claimed that he had
“discovered a wealth of issues that had either been ignored or poorly argued, leading
a simple motion to reconsider improper service of process to balloon into a motion
to dismiss for lack of personal jurisdiction, lack of an applicable long-arm statute,
and Rule 91A failure to state a claim, which was filed on October 28, 2015.” Then,
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“[w]hile working on this motion, Fidelity’s new counsel mistakenly believed that
Fidelity had only filed special appearance motions in trial court, and therefore would
be able to file a restricted appeal within six months of the default judgment.” 1 But
it was “[o]nly after the ninety (90) day deadline had passed on October 29, 2015
[that] Fidelity’s new counsel realize[d] that this was not the case,” and then he
removed the matter to federal court. Upon remand to state court, Fidelity filed its
notice of appeal on January 7, 2016, “effectively (13) days after the ninety (90) day
deadline.”
Thus, Fidelity essentially claimed that it was reasonable to hold off on filing
a notice of appeal earlier because its new counsel believed that he had reasonable,
jurisdictional arguments for removal and there was a chance that the federal court
would proceed with the case. However, Fidelity ignores the fact that its prior
counsel’s motion for new trial and special appearance, which the trial court denied
on October 6, 2015, made similar jurisdictional arguments as those raised in
Fidelity’s notice of removal. Instead of filing a notice of appeal after being
substituted in as counsel on October 14, 2015, Fidelity’s new counsel instead chose
to file a motion for reconsideration of the denial of its special appearance, essentially
a second motion for new trial, on October 28, 2015. If a motion for new trial was
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Only parties who did not participate in the hearing that led to the judgment and who
did not timely file a post-judgment motion may file a restricted appeal within six
months of the signing of the judgment. See TEX. R. APP. P. 30.
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timely filed, as Fidelity’s former counsel did here, the trial court only had plenary
power to grant a new trial until thirty days after all timely-filed motions were
overruled on October 6, 2015, which would have been November 5, 2015. See TEX.
R. CIV. P. 329b(e).
Then, instead of filing a notice of appeal at that point, Fidelity’s new counsel
chose to file a notice of removal based on diversity of citizenship on November 6,
2015. Generally, a notice of removal “may be filed within 30 days after receipt by
the defendant, through service or otherwise, of a copy of an amended pleading,
motion, order or other paper from which it may first be ascertained that the case is
one which is or has become removable.” 28 U.S.C. § 1446(b)(3). However, “[a]
case may not be removed under subsection (b)(3) on the basis of jurisdiction
conferred by section 1332 [diversity of citizenship] more than 1 year after
commencement of the action, unless the district court finds that the plaintiff has
acted in bad faith in order to prevent a defendant from removing the action.” 28
U.S.C. § 1446(c).
Here, Fidelity’s notice of removal was filed on November 6, 2015, nearly two
years after service of the amended petition on December 23, 2013. Thus, Fidelity’s
reasonable explanation ignores the fact that its notice of removal was untimely filed
unless the federal court held that that Li had “acted in bad faith in order to prevent
[Fidelity] from removing the action.” 28 U.S.C. § 1446(c); see, e.g., Pasha v. YP
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Advertising, L.P., No. 01-14-00456-CV, 2014 WL 4116456, at *1 (Tex. App.—
Houston [1st Dist.] Aug. 21, 2014, no pet.) (per curiam) (mem. op.) (appellants’
explanation “that it was reasonable to hold off on filing a notice of appeal earlier
because they believed that there was a chance the trial court would grant their motion
for new trial,” however, “ignored the fact that that . . . their motion for new trial . . .
had already been overruled by operation of law. . . .”).
In this case, the federal court did not hold that Li had acted in bad faith to
prevent a timely removal. See 28 U.S.C. § 1446(c). Instead, the federal court held
that there was no fraudulent misjoinder by Li and no diversity jurisdiction and, thus,
that Fidelity had “waived its right to remove the case because, in effect, it seeks
appellate review of the state court’s decision.” (C.R. 195-99). Thus, Fidelity’s claim
that it was reasonable to wait to file its notice of appeal until after its notice of
removal was remanded was an unreasonable explanation since it indicates that it
deliberately and intentionally waited to file the notice of appeal in favor of filing a
notice of removal to federal court to raise similarly-rejected jurisdictional arguments
for at least the second time. See, e.g., Connor v. Connor, No. 01-15-00916-CV,
2015 WL 9303498, at *1 (Tex. App.—Houston [1st Dist.] Dec. 22, 2015, no pet.)
(per curiam) (mem. op.) (“Intentionally waiting for the trial court to hear or rule on
a motion for new trial is not a reasonable excuse for untimely filing the notice of
appeal.”) (citing, inter alia, Pasha, 2014 WL 4116456, at *1-2 (appeal dismissed
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because appellants’ explanation that they believed there was a chance trial court
would grant their motion for new trial held to be conscious ignorance of deadline
and thus, their failure to file notice of appeal timely was unreasonable)).
Because Fidelity offered no reasonable explanation that indicates the late
notice of appeal filing was not a deliberate or intentional act, the notice of appeal
was not timely. See Garcia, 774 S.W.2d at 670. Without a timely filed notice of
appeal, this Court lacks jurisdiction over the appeal. See TEX. R. APP. P. 25.1.
CONCLUSION
Accordingly, we deny appellant’s motion for extension of time to file its
notice of appeal and dismiss this appeal for want of jurisdiction. See TEX. R. APP.
P. 42.3(a), (c), 43.2(f). We dismiss any other pending motions as moot.
PER CURIAM
Panel consists of Chief Justice Radack and Justices Keyes and Higley.
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