Opinion
No. 08-20-00135-CV
10-23-2020
THEODIS and MARIA BRUCE, VIRGINIA and SERGIO CORDOVA, VICTOR CORRAL, JOSE DOMINGUEZ MAGDALENA JUAREZ, BERNARDA LOPEZ, ELISA NEGRETE, MARIA REYES, LUIS VELAZQUEZ, JOSE VALDEZ, ANTONIO and MARIA SALGADO, and IRIS JORDAN, Appellants, v. OSCAR RENDA CONTRACTING, Appellee.
Appeal from the 171st District Court of El Paso County, Texas (TC# 2016DCV3160) MEMORANDUM OPINION
This matter is before the Court on its own motion to determine whether an attempted cross-appeal filed by Oscar Renda Contracting should be dismissed. Finding that the cross-appeal was not timely filed as required by the Texas Rules of Appellate Procedure, we dismiss Oscar Renda Contracting's cross-appeal.
TEX.R.APP.P. 26.1 sets the deadlines for filing a notice of appeal in civil cases. In ordinary appeals, a party must file an initial notice of appeal within 30 days if no time-extending motion such as a motion for new trial is filed in the trial court, or within 90 days if a time-extending motion is filed in the trial court. See TEX.R.APP.P. 26.1(a). Any party who seeks to alter the trial court's judgment or other appealable order must file a notice of appeal, including appellees filing cross-appeals. See TEX.R.APP.P. 25.1(c); Brooks v. Northglen Ass'n, 141 S.W.3d 158, 171 (Tex. 2004); Mullendore v. Muehlstein, 441 S.W.3d 426, 428 n.2 (Tex.App.--El Paso 2014, pet. denied). Appellate Rule 26.1(d), dealing with subsequently-filed notices of appeal from other parties including cross-appellants, states that if any party timely files a notice of appeal, another party may file a subsequent notice of appeal within the time period set by Rule 26.1 generally, or within 14 days after the first filed notice of appeal, whichever is later. TEX.R.APP.P. 26.1(d). The failure of a party to timely file a cross-appeal may constitute grounds for dismissal of that cross-appeal. See TEX.R.APP.P. 25.1(b).
In this case, the trial court signed the final judgment in this case on May 30, 2020. Appellants timely filed their notice of appeal on June 26, 2020, and Oscar Renda Contracting was identified as the Appellee in this matter. On June 30, 2020, while this appeal was pending, Oscar Renda Contracting filed a motion for judgment notwithstanding the verdict in the trial court that asked the trial court to render a take-nothing verdict after it had already rendered a judgment that was partially favorable to Appellants. Because the motion asked the trial court to modify the judgment, it is considered a time-extending motion under TEX.R.APP.P. 26.1(a)(2). However, to be timely filed for purposes of extending the NOA filing period under Rule 26.1, a motion for new trial or other judgment-altering motion must be filed within 30 days of the trial court's judgment. See TEX.R.CIV.P. 329B(g); Nevarez Law Firm, P.C. v. Investor Land Servs., L.L.C., No. 08-20-00094-CV, 2020 WL 5640391, at *1 (Tex.App.--El Paso Sept. 22, 2020, op. on reh'g). Here, that 30-day deadline fell on June 29, 2020. See TEX.R.APP.P. 4.1(a) (setting out the standard for computing time under the appellate rules). That means that the June 30, 2020, motion was untimely for purposes of extending the time period for filing a notice of appeal generally under Rule 26.1 from 30 days to 90 days. As such, the deadline for Rule 26.1(a) purposes was June 29, 2020--30 days after the trial court's judgment.
Per Rule 26.1(d), any notices of cross-appeal were due within 14 days of June 29, 2020, since that was the later of the two dates as between the date the first notice of appeal was actually filed and the date the first notice of appeal was due. See TEX.R.APP.P. 26.1(d). Fourteen days from June 29, 2020 fell on July 13, 2020. Oscar Renda Contracting filed a notice of cross-appeal on September 1, 2020.
Given the absence of a timely-filed time-extending motion in the clerk's record, we sent a notice to the parties on September 1, 2020, giving them 10 days to show grounds for continuing with the cross-appeal. As of this date, we have not received a response to our notice. Because the notice of cross-appeal was filed outside of the time period set by TEX.R.APP.P. 26.1(d), and because we have not received a response from Oscar Renda Contracting adequately explaining this discrepancy or providing just cause for continuing the cross-appeal, the cross-appeal from Oscar Renda Contracting is hereby dismissed. See TEX.R.APP.P. 25.1(b).
JEFF ALLEY, Chief Justice October 23, 2020 Before Alley, C.J., Rodriguez, and Palafox, JJ.