Julia Ann Hernandez v. Jacqueline R. Goede ( 2015 )

ACCEPTED
04-15-00597-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
10/19/2015 4:46:46 PM
KEITH HOTTLE
CLERK
No. 04-15-00597-CV
FILED IN
IN THE COURT OF APPEALS 4th COURT OF APPEALS
SAN ANTONIO, TEXAS
FOR THE FOURTH JUDICIAL CIRCUIT
10/19/2015 4:46:46 PM
SAN ANTONIO, TEXAS KEITH E. HOTTLE
Clerk
JULIA ANN HERNANDEZ
Appellant
v.
JAQUELINE R. GOEDE
Appellee
ON APPEAL FROM THE COUNTY COURT AT LAW N0.10
BEXAR COUNTY, TEXAS
Cause No. 2015CV00194
APPELLEE'S REPLY TO APPELLANT'S RESPONSE TO COURT'S
ORDER REGARDING TIMELINESS OF APPEAL
PATRICK C. BERNAL
State Bar No. 02208750
CLARISSA M. RODRIGUEZ
State Bar No. 24056222
DENTON NAVARRO ROCHA BERNAL HYDE & ZECH
A Professional Corporation
2517 N. Main Avenue
San Antonio, Texas 78212
Telephone: (210) 227-3243
Facsimile: (210) 225-4481
COUNSEL FOR APPELLEE
This appeal results from a Motion to Dismiss filed by Jacqueline R. Goede
("Appellee") pursuant to §27 .003 of the Texas Civil Practice and Remedies Code on
January 30, 2015. The trial court granted the Motion and dismissed the lawsuit on
May 26, 2015, pursuant to §27.005. Subsequent to the entry of the dismissal order,
Julia Ann Hernandez ("Appellant") notified the undersigned via email of the filing
of a Motion for New Trial on June 25, 2015. See, Mr. Penguin Tuxedo Rental &
Sales, Inc. v. NCR Corp., 787 S.W.2d 371, 371-72 (Tex. 1990) (per curiam) (a
document is filed when it is given into the custody of the clerk; the file stamp is
prima facie evidence of the date of filing, but it is subject to rebuttal). Regardless
of whether Appellant prevails on the jurisdictional issue related to the motion for
new trial, Appellant untimely filed her notice of appeal as discussed further below.
A. Appellant Did Not Comply With the Accelerated Appeal Deadlines
Pursuant to Texas Civil Practice and Remedies Code Chapter 27.
Section 27 .008(b) of the Texas Civil Practice and Remedies Code provides:
"An appellate court shall expedite an appeal or other writ, whether interlocutory or
not, from a trial court order on a motion to dismiss a legal action under Section
27.003 ... " [Emphasis added.] Rule 28.l(a) of the Texas Rules of Appellate
Procedure governs accelerated appeals required by statute to be expedited.
Perfection of an accelerated appeal is accomplished by filing a notice of appeal
within twenty (20) days after the judgement nr order is signed. See Tex. R. App. P.
28.l(b ); 26.l(b ). Under an accelerated appeal and pursuant to the statute,
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Appellant's notice of appeal was due on June 15, 2015.
An accelerated appeal can also be perfected by filing a motion to extend time
to file notice of appeal. See, Tex. R. App. P. 26.l(b); 26.3. Filing a motion for new
trial or any other post-trial motion does not extend the timelines to perfect an
accelerated appeal. See, Tex. R. App. P. 28.l(b). Appellant's deadline to file a
motion to extend time to file a notice of appeal was June 30, 2015.
As a result of Appellant's failure to file either a notice of appeal on June 15,
2015, or a motion to extend time to file a notice of appeal on June 30, 2015,
Appellant's Notice of Appeal is untimely and this appeal should be dismissed.
B. Appellant Also Failed to Timely File A Notice of Appeal Under General
Appellate Deadlines.
In the alternative, Appellant failed to timely file a notice of appeal or motion
to extend pursuant to the general appellate deadlines. An appeal is timely perfected
within ninety (90) days after the date of the judgment. See, Tex. R. App. P. 26.l(a).
A motion to extend time to file notice of appeal may also apply to perfect an appeal
if filed within fifteen (15) days after the deadline to file the notice of appeal. See,
Tex. R. App. P. 26.3.
Appellant's notice of appeal was due to be filed in the trial court on August
24, 2015, ninety (90) days after the trial court's Order was signed. See, Tex. R. App
P. 26.l(a). Appellant filed a Notice of Appeal in the trial court on September 9,
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2015 and in the Court of Appeals on September 11, 2015. Appellant's deadline to
file a notice of appeal and a motion to extend time to file notice of appeal expired on
September 8, 2015. See, Tex. R. App. P. 26.3. Appellant failed to timely file a
notice of appeal and a motion to extend the deadline to file a notice of appeal in this
Court; therefore, this appeal should be dismissed.
CONCLUSION
Either by way of the expedited appellate rules as stated in Chapter 27 of the
Texas Civil Practice and Remedies Code or general appellate rules related to
perfecting an appeal, Appellant failed to meet the timelines to perfect her appeal.
Therefore, this appeal should be dismissed in its entirety.
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Respectfully submitted,
DENTON NAVARRO ROCHA BERNAL
HYDE&ZECH
A Professional Corporation
2517 N. Main Avenue
San Antonio, Texas 78212
(210) 227-3243
(210) 225-4481 Facsimile
patrick.bernal@rampage-sa.com
clarissa.rodriguez@rampage-sa.com
BY:
State Bar No. 02208750
CLARISSA M. RODRIGUEZ
State Bar No. 24056222
COUNSEL FOR APPELLEE
CERTIFICATE OF SERVICE
I certify that I served a true and correct copy of the foregoing Motion to Dismiss on
the Appellant in this action on this 19th day of October, 2015 by efile electronic
service.
Chris Carmona E-FILE NOTIFICATION
Law Office of Chris Carmona AND FAX NO.: 832-460-2724
P.O. Box 7137
Houston, Texas 77248
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