Opinion
No. 07-01-0466-CV
August 7, 2002
Appeal From The 64th District Court Of Hale County; No. A-29,652-9803; Honorable Jack R. Miller, Judge
Jack Stoffregen for appellant.
Peter I. Clarke for appellee.
Panel C: QUINN and REAVIS and JOHNSON, JJ.
Leslie Susanne Gary appeals from an order of the trial court sustaining a contest to her affidavit of indigence. We vacate the trial court's order.
I. BACKGROUND
On November 16, 2001, the District Clerk of Hale County file-marked two documents Leslie Susanne Gary filed relating to a judgment (the judgment) of the 64th District Court of Hale County which was signed on October 16, 2001: a notice of appeal (the notice) and an affidavit of indigence (the affidavit). The notice and the affidavit each bore a certificate of service dated November 15, 2001. The clerk's record contains a copy of an envelope addressed to the District Clerk with the return address of Susanne's attorney and bearing a postmark of November 15, 2001. The envelope is located in the record between Susanne's affidavit and her notice of appeal.
The record shows that appellant's name is spelled as both "Susanne" and "Suzanne." We use the spelling which she uses as demonstrated by her signature.
On November 20, 2001, court reporter Debra Smith filed a contest to Susanne's affidavit of indigence. The trial court set a hearing on the contest for November 29, 2001, and held the hearing on that date. On January 17, 2002, the trial court signed an order sustaining the contest. On January 24th, Susanne requested findings of fact and conclusions of law.
By motion filed with both the appellate clerk and the trial court clerk on February 20th, Susanne sought abatement of her appeal from the judgment and appellate review of the order sustaining the contest. We granted the motion to abate and directed the trial court clerk and the court reporter to file portions of the record necessary to our review of the trial court's order. See In re Arroyo, 988 S.W.2d 737, 738-39 (Tex. 1998). Those portions of the record have been filed.
Susanne has filed a brief asking this court to vacate the trial court's order sustaining the contest. She first asserts that the trial court did not sign its order sustaining the contest within the time prescribed by Tex.R.App.P. 20.1(i), thus her affidavit is deemed true and she is entitled to proceed without advance payment of costs. Second, she urges that the trial court abused its discretion in sustaining the contest.
Further reference to a rule of appellate procedure will be by reference to "TRAP _." Reference to a provision of the Texas Rules of Civil Procedure will be by reference to "TRCP _."
Court reporter Smith has filed a brief asserting that as to the order sustaining her contest, we should either dismiss the appeal for want of jurisdiction or affirm the trial court's order. Smith presents four bases for her positions: (1) Susanne's notice of appeal was not timely and failed to invoke our jurisdiction; (2) Susanne did not file a separate notice of appeal regarding the trial court's order sustaining the contest, thus we have no jurisdiction to review the order; (3) the trial court's order was timely, or if it was not timely, Susanne waived the provisions of TRAP 20.1(i)(4); and (4) in any event, the trial court did not abuse its discretion in sustaining the contest.
II. JURISDICTION AND PROCEDURE FOR APPEAL OF THE ORDER
We initially consider whether Susanne's notice was timely to invoke appellate jurisdiction over the judgment. The jurisdiction of a court of appeals is invoked by timely filing documents showing a bona fide intent to appeal. See Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997). In a civil case, notice of appeal must be filed within 30 days after the judgment is signed unless any party timely files a (1) motion for new trial, (2) motion to modify the judgment, (3) motion to reinstate under TRCP 165a, or (4) request for findings of fact and conclusions of law if they are required or could properly be considered by the appellate court. See TRAP 26.1. An appellate court may extend the time for filing notice of appeal if, within 15 days after the deadline for filing the notice, the party files the notice in the trial court and files in the appellate court a motion complying with TRAP 10.5(b). See TRAP 26.3. A motion for extension of time is implied when an appellant acting in good faith files, within the 15-day period in which the appellant would be entitled to move to extend the filing deadline, documents showing a bona fide intent to appeal. See Verburgt, 959 S.W.2d at 617.
Smith does not argue that Susanne's notice was filed without a bona fide intent to appeal. Smith merely asserts that the notice was late by one day. She does not address the certificate of service on the notice which was dated November 15th, the envelope reflected in the clerk's record with a postmark of November 15th, or the "mailbox rule." See Kinnard v. Carnahan, 25 S.W.3d 266, 268 (Tex.App.--San Antonio 2000, no pet.) (discussing TRAP 9.2(b), TRCP 5 and the "mailbox rule").
Susanne and her attorney attended the hearing on the contest, responded in writing to the trial judge after the hearing, filed a request for findings of fact and conclusions of law following entry of the order of January 17, 2002, and have continued attending to the appeal. The record reflects that Susanne's notice, even if late, was filed within 15 days after the deadline for filing of notice of appeal, and with a bona fide intent to appeal. We grant Susanne's implied motion for extension of time to file the notice of appeal. We overrule Smith's assertion that the notice was untimely and failed to invoke appellate jurisdiction.
Because we grant Susanne's implied motion for extension of time to file her notice of appeal, we need not consider whether her notice was timely pursuant to provisions of TRAP 9.2(b) and TRCP 5.
We next consider the procedure utilized by Susanne for appealing from the order sustaining the contest. That is, did Susanne's notice of appeal from the judgment suffice to perfect appeal and invoke appellate jurisdiction as to both the judgment and the subsequent order sustaining the contest, or was a separate notice of appeal required to invoke appellate jurisdiction to consider the order? See Baughman v. Baughman, 65 S.W.3d 309, 311 (Tex.App.--Waco 2001, pet. denied).
Procedural simplicity is not determinative of whether appellate jurisdiction has been invoked by a litigant. However, allowing Susanne to challenge the order as part of her existing appeal from the judgment eliminates a source of possible confusion about the number of records required to be filed, docketing of and filings in more than one appeal from a single substantive trial court case, considerations of whether severance or consolidation of appeals should occur, and similar practical issues. See, e.g., B.J.M. v. State, 997 S.W.2d 626, 627 (Tex.App.--Dallas 1998, no pet.). Moreover, considering the validity of such an order without requiring a separate notice of appeal reduces the number of "traps" which must be avoided by litigants seeking appellate review. See Verburgt, 959 S.W.2d at 618 n. 2 (Enoch, J., dissenting) (thrust of the 1997 rules of appellate procedure is to eliminate procedural traps).
But for Susanne's appeal from the judgment, she would not have needed to file her affidavit. Regardless of whether the order sustaining the contest to Susanne's affidavit is an appealable order in and of itself and could be appealed via a separate notice of appeal directed solely to the order, see TRAP 25.1(c); Baughman, 65 S.W.3d at 311, we conclude that Susanne's appeal from the order sustaining the contest is ancillary to her appeal from the judgment, and a separate notice of appeal from the order was not required. See In re Arroyo, 988 S.W.2d at 738-39. We overrule Smith's challenge to Susanne's notice of appeal as failing to invoke appellate jurisdiction to consider the order sustaining Smith's contest. III. MERITS OF THE APPEAL
In any event, the motion to abate clearly stated Susanne's intention to appeal from the order sustaining the contest. It was timely to perfect a separate appeal. See TRAP 25.1(d), 26.1(a)(4); Verburgt, 959 S.W.2d at 616-17; Foster v. Williams, 74 S.W.3d 200, 204 (Tex.App.--Texarkana 2002, no pet. h.).
In presenting her first issue, Susanne cites TRAP 20.1(i), Ramirez v. Packer, 807 S.W.2d 728, 729 (Tex. 1991), and B.J.M., 997 S.W.2d at 627, to support her proposition that the trial court order is invalid because it was not timely signed. Smith posits in part and without cite to authority, that the trial court's order was timely. We agree with Susanne that the order was not timely.
The trial court was required to conduct a hearing within ten days from the date the contest was filed, or to sign an order extending the time to conduct a hearing. See TRAP 20.1(i)(2); B.J.M., 997 S.W.2d at 627. The trial court was also required to sign an order within the period set for the hearing or the allegations of Susanne's affidavit are deemed true and she is entitled to proceed without advance payment of costs. See TRAP 20.1(i)(4).
The trial court did not sign an order extending the time to conduct the hearing. The hearing of November 29, 2001, was held within ten days from the filing of the contest. The order signed on January 17, 2002, sustaining the contest was not signed within the period prescribed for the hearing. The order was untimely. See Ramirez, 807 S.W.2d at 729; B.J.M., 997 S.W.2d at 627.
Smith also urges, however, that if the order was not timely, then Susanne waived the time periods specified by TRAP 20.1(i)(4). Smith asserts that at the hearing of November 29th, the trial court requested post-hearing briefs to be submitted by the parties, and that Susanne not only failed to object to such procedure, but acquiesced in it by submitting a letter brief to the court on December 5, 2001. Smith's brief does not reference the record in regard to such matters. See TRAP 38.1(f), (h). The record does not disclose evidentiary support for the assertions. The trial court's findings of fact and conclusions of law do not address the issue of waiver. Smith's appellate brief includes copies of post-hearing briefs by Susanne and Smith. The post-hearing briefs, however, are not part of the clerk's record, and we do not consider them. We must determine a case on the record as filed. See TRAP 38.1(h), (j); Dominguez v. Gilbert, 48 S.W.3d 789, 794 (Tex.App.--Austin 2001, no pet.); Schlafly v. Schlafly, 33 S.W.3d 863, 873 (Tex.App.--Houston [14 Dist.] 2000, no pet.) (also discussing appellate counsel's duty to fairly portray the record and confine arguments to matters within the record). Even if Susanne could waive the time periods specified by TRAP 20.1(i)(4), a question we do not decide, there is no finding by the trial court that she did so, and no evidence in the record that she did so. We overrule Smith's assertion that either the order was timely or that Susanne waived the time periods of TRAP 20.1(i)(4).
The letter which Smith's appellate brief represents to be Susanne's post-hearing brief contains two separate references to TRAP 20 and its provisions. Those references remind the trial court that absent a timely-signed order, an affidavit of indigence is deemed to be true.
IV. CONCLUSION
We sustain Susanne's first issue. Because the first issue is dispositive of the appeal as to the order, we do not consider her second issue. We vacate the trial court's order dated January 17, 2002, and order that the contest to Susanne's affidavit of indigence is overruled. See TRAP 43.2(c).
Our prior order abating the appeal is vacated. The times prescribed by the Rules of Appellate Procedure for the appeal are reinstituted. This opinion shall be deemed an extension of time for filing of the reporter's record until September 6, 2002. Those portions of the appellate record which have not been filed must be filed on or before September 6, 2002, absent an extension of time pursuant to the Rules of Appellate Procedure.
ON MOTION FOR REHEARING
By opinion dated August 8, 2002, we dismissed this proceeding for want of jurisdiction because the notice of accelerated appeal from an order of termination was untimely filed. On September 4, 2002, appellant filed a motion for extension of time in which to file her motion for rehearing together with her motion for rehearing. We grant the motion for extension of time; however, remaining convinced that dismissal was required, we overrule the motion for rehearing with these additional comments.
We do not overlook Rule 49.4 of the Texas Rules of Appellate Procedure which grants us the authority to deny the right to file a motion for rehearing in an accelerated appeal or shorten the time in which to file such motion. However, in the interest of justice we follow the deadlines provided by Rules 49.1 and 49.8.
By her motion for rehearing, appellant concedes that her accelerated notice of appeal was due to be filed within 20 days after the termination order signed March 26, 2002. However, counsel for appellant admits that she mistakenly proceeded under the ordinary appellate timetable after a motion for new trial was filed and did not file the notice of appeal until July 23, 2002. Relying on Rule 42.3(c) of the Texas Rules of Appellate Procedure counsel argues that dismissal of the appeal was discretionary. Rule 2, however, provides that we may not suspend a rule's operation or order a different procedure to alter the time for perfecting an appeal in a civil case.
Counsel also relies on In the Interest of B.G., E.H., and J.M.H., No. 10-02-019-CV, 2002 Tex.App. LEXIS 4371 (Tex.App.-Waco June 19, 2002, no pet. h.). In the Waco case, appellant filed her notice of appeal on January 10, 2002, from a termination order signed December 14, 2001. The Court notified appellant that although her notice of appeal should have been filed within 20 days, pursuant to Rule 26.3 which provides a 15-day extension, the notice could be considered timely if she offered a reasonable explanation for the delay. Appellant's counsel responded four days later explaining that he was unaware of the Legislature's amendments to the Family Code and that he mistakenly believed that the motion for new trial extended the time for perfecting an appeal. In the underlying case, appellant did not file her notice of appeal within the 15-day window, but instead waited approximately three months after the termination order was signed to do so. Nothing in the Texas Rules of Appellate Procedure provides a remedy for a notice of appeal filed after all deadlines for doing so have expired. Thus, we had no discretion but to dismiss the appeal for want of jurisdiction.
See Tex. Fam. Code Ann. §§ 109.002(a), 263.405(a), and 263.405(c) (Vernon Supp. 2002).
Accordingly, appellant's motion for rehearing is overruled.
I concur in the opinion and result of the majority but write to express my disagreement with aspects of Rogers v. Mitchell, No. 06-01-00091-CV, 2002 Tex. App. WL1379971, at *1 (Tex.App.--Texarkana Jun 27, 2002, no pet. h.) and Baughman v. Baughman, 65 S.W.3d 309 (Tex.App.--Waco 2001, pet. denied). For the following reasons, analysis leads me to respectfully conclude that both decisions incorrectly hold that a separate notice of appeal is needed to perfect review of a decision upholding a contest to an affidavit of indigence.
First, no rule of appellate procedure or statute requires one to file a separate notice of appeal to perfect review of decisions denying leave to proceed as an indigent. And, I hesitate to create any such obstacle to appeal when neither the legislature nor the Supreme Court has created one.
Second, when discussing the method by which an appellant can question such a determination, the Texas Supreme Court held that "the court of appeals can and should, on motion or its own initiative, require the clerk and court reporter under Rules 34.5(c)(1) and 34.6(d), respectively, to prepare and file the portions of the record necessary to review an order sustaining a contest to an affidavit of indigence." In re Arroyo, 988 S.W.2d 737, 739 (Tex. 1998). The two rules of appellate procedure mentioned by the court, i.e. 34.5(c)(1) and 34.6(d), contemplate the supplementation of a record in a pending appeal, not creation of a record in a separate appeal. This, when coupled with the context in which they were alluded to in Arroyo, necessarily implies that a dispute regarding an appellant's status as an indigent be reviewed as part of or ancillary to the original appeal, not as a distinct issue in a separate appeal. See Arevalo v. Millan, 983 S.W.2d 803, 804 (Tex.App.--Houston [1st Dist.] 1998, no pet) (holding that the court would "review the issue as a matter ancillary to appellant's appeal").
Third, addressing the matter as ancillary to the pending appeal (and not via a distinct appeal) comports with the commonly accepted principle that a notice of appeal from a final judgment brings forward the entire case, not merely aspects of it. Webb v. Jorns, 488 S.W.2d 407, 409 (Tex. 1972); 4 Tex. Jur.3d Appellate Review § 226 (1999). And, one cannot reasonably deny that a trial court's decision denying one leave to proceed on appeal as an indigent is a decision constituting part of the entire case.
Neither Rogers nor Baughman considered the reference in Arroyo to Rules 34.5 and 34.6, the holding in Arevalo, or the general principle enunciated in Webb. Because they did not, I respectfully conclude they erred in holding that a separate notice of appeal was needed to perfect review of a decision refusing to grant one the status of an indigent on appeal. The original notice of appeal from the final judgment is enough to bring the matter before the appellate court, in my view.