Eddie Lacy Stivers III v. Jerry Holmes ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00342-CV
___________________________
EDDIE LACY STIVERS III, Appellant
V.
JERRY HOLMES, Appellee
On Appeal from the 297th District Court
Tarrant County, Texas
Trial Court No. D297-S-12155-13
Before Gabriel, Kerr, and Pittman, JJ.
Per Curiam Memorandum Opinion on Rehearing
MEMORANDUM OPINION ON REHEARING
On January 10, 2019, we dismissed appellant Eddie Lacy Stivers III’s attempted
appeal from the trial court’s July 18, 2018 final summary judgment. Specifically, we
concluded that Stivers had failed to pay the required filing fee after we had twice
requested his compliance. See Tex. R. App. P. 42.3(c), 44.3. The next day, Stivers
filed a letter, which we construed to be a motion for rehearing, arguing that he had
sought to proceed without the payment of costs in the trial court. See Tex. R. Civ. P.
145; Tex. R. App. P. 19. Because the clerk’s record seemed to support Stivers’s
assertion, we requested a response from appellee Jerry Holmes. See Tex. R. App. P.
49.2.
Holmes responded and argued that Stivers’s appeal was subject to dismissal for
nonpayment because he did not fix the identified defect within a reasonable time after
our notifications. But upon further review of the record, we have determined that we
do not have jurisdiction over this appeal.
The trial court signed its final summary judgment on July 18, 2018, making any
motion for new trial due on or before August 17, 2018. See Tex. R. Civ. P. 329b(a).
Stivers’s motion for new trial was filed in the trial court on August 22, 2018, but the
one-day priority envelope shows that it was received by the United States Postal
Service on August 17, 2018; thus, it was timely filed. See Tex. R. Civ. P. 5.
Accordingly, Stivers’s notice of appeal was due on or before October 16, 2018. See
Tex. R. App. P. 26.1(a).
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The notice of appeal was filed in the trial court on October 22, 2018. The
envelope shows that it was postmarked by the United States Postal Service in Austin,
Texas, on October 18, 2018, two days after the appellate deadline. Stivers stated in
the certificate of service that he “served a copy of Notice of Appeal on the Parties
listed below by First Class U.S. mail” on October 16, 2018. But the postmark is
“conclusive proof of the date of mailing.” Tex. R. App. P. 9.2(b)(2)(A).
We recognize that because the perfecting instrument was filed within fifteen
days of the appellate deadline, an extension motion is implied. See Verburgt v. Dorner,
959 S.W.2d 615, 616–17 (Tex. 1997). But Stivers still had the duty to come forward
with a reasonable explanation to support the late filing, which he has not done. Id. at
617; Woodard v. Higgins, 140 S.W.3d 462, 462–63 (Tex. App.—Amarillo 2004, no pet.).
Before notifying Stivers of his failure to pay the filing fee, we also notified him that
his notice of appeal was not timely filed and questioned our jurisdiction. See Tex. R.
App. P. 42.3, 44.3. Stivers responded, relying on “the mail box rule” to render his
notice timely, and submitted an affidavit stating, “I personally deposited the Notice of
Appeal in a U.S. Postal Service box on October 16th, 2018, by first-class mail, affixed
with proper postage and addressed to the proper clerk.”1 Stivers did not address the
conclusive proof of the actual October 18 mailing date from Austin, Texas, which was
included in the clerk’s record and attached to his jurisdictional response. Stivers’s
1
We take judicial notice that October 16, 2018, was a Tuesday. See Tex. R.
Evid. 201.
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unilateral assertion of a mailing date that is clearly controverted by conclusive proof,
without more, does not provide a reasonable explanation justifying an extension. See
Tex. R. App. P. 10.5(b), 26.3; Stephens v. Stephens, No. 2-10-197-CV, 2010 WL 3433108,
at *2 (Tex. App.—Fort Worth Aug. 31, 2010, no pet.) (per curiam mem. op.).
We also recognize that Stivers is incarcerated and cannot be penalized for
delays in the prison mail system. See Warner v. Glass, 135 S.W.3d 681, 684 (Tex. 2004).
Thus, if Stivers had placed his notice of appeal “in the prison mail system,” it would
be “deemed filed at the time the prison authorities duly receive[d] the document to be
mailed.” Id. But at no point did Stivers assert that he gave either his motion for new
trial or notice of appeal to prison authorities. Stivers has never affirmatively stated or
even implied that he mailed the notice of appeal by placing it in the prison mail
system or by otherwise giving it to prison authorities. Cf. Ramos v. Richardson, 228
S.W.3d 671, 673 (Tex. 2007) (holding notice of appeal timely filed because pro se
litigant stated on certificate of service that it was placed in the “outgoing prison
mailbox” by the appellate deadline). Not in his certificates of service, not in his
affidavits, and not in his jurisdictional response. Stivers did not do “everything
necessary to comply with the rules” and we cannot give him the benefit of the prison
mailbox rule when he does not state that he availed himself of the prison mailbox. Id.
Stivers’s incarceration, without more, does not establish that he used the prison mail
system. Cf. Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 928 (Tex. 1999) (“[W]hen the
sender of a document relies on office routine or custom to support an inference that
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the document was mailed, the sender must provide corroborating evidence that the
practice was actually carried out.”).
We conclude that because Stivers failed to timely file a notice of appeal or
provide a reasonable explanation of why he failed to do so, we have no jurisdiction
over this appeal. See, e.g., Woodard, 140 S.W.3d at 462–63. We withdraw our January
10, 2019 opinion and judgment dismissing the appeal for the failure to pay a filing fee,
substitute this opinion in its place, and deny the motion for rehearing. We dismiss
Stivers’s attempted appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a), 43.2(f).
Per Curiam
Delivered: February 28, 2019
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