Opinion
08-23-00271-CV
02-22-2024
LABOE LABRADO, Appellant, v. AURORA LEGARRETA, Appellee.
Appeal from the 448th Judicial District Court of El Paso County, Texas (TC# 2016DCV0016)
Before Palafox and Soto, JJ., and Barajas, C.J. (Senior Judge)
ORDER
PER CURIAM
Pending before the Court are Appellee's "Motion to Dismiss for Failure to Comply" and "Motion to Strike Surety Bond." For the reasons set forth below, we deny both motions.
Appellee's Motion to Dismiss the Appeal for Failure to Comply
Appellee moved to dismiss the appeal because Appellant did not comply with appellate rules for filing a timely notice of appeal or for filing an adequate supersedeas bond. Our October 31, 2023 order recognized that Appellant's notice of appeal was filed late but within Rule 26.3's 15-day grace period. Tex.R.App.P. 26.3. We also recognized that although Appellant did not file a motion for extension of time to file his notice of appeal as required by Rule 26.3(b), such a motion is necessarily implied when an appellant, acting in good faith, files a notice of appeal within the 15-day grace period. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). We then directed Appellant to provide us with a reasonable explanation for the late filing of the notice of appeal by November 10, 2023. Verburgt, 959 S.W.2d at 617. Appellant did so on November 8, 2023, asserting a calendaring mistake. Because we conclude that Appellant's explanation for the late filing is reasonable, we decline to dismiss the appeal on this basis.
Appellant also filed a motion for extension of time to file his notice of appeal, providing the same explanation for his failure to timely file his notice of appeal, which we granted on November 28, 2023.
Appellee also urges dismissal because Appellant did not comply with the appellate rules for filing an adequate supersedeas bond. Filing a supersedeas bond is solely to suspend enforcement of the trial court's judgment pending appeal. Tex.R.App.P. 24.1(a)(2); Haedge v. Cent. Texas Cattlemen's Ass'n, 603 S.W.3d 824, 829 (Tex. 2020). It is not a requirement for perfecting an appeal; therefore, an appellant's failure to file a sufficient supersedeas bond does not divest an appellant of his right to appeal from the trial court's judgment. Marshall v. Housing Auth. of the City of San Antonio, 198 S.W.3d 782,786-87 (Tex. 2006).
We DENY Appellee's Motion to Dismiss Appeal For Failure to Comply.
Appellee's Motion to Strike the Surety Bond
In her motion to strike Appellant's surety bond, Appellee renews her argument that the bond was inadequate because it did not contain "all necessary allegations and proof of sufficient surety," as required by Tex.R.App.P. 24.1(b)(1)(D). Specifically, she argued, the bond "fails to provide any information coverage for an estimated duration of appeal" and "fails to show the existence of sufficient nonexempt and unencumbered property subject to execution in the amount of the bond."
While an appellee may seek review of the sufficiency of a supersedeas bond, Tex.R.App.P. 24.4(a), appellate courts review the trial court's "broad discretion in determining the amount and type of security required" to supersede a judgment for abuse of discretion. Mendoza v. La Mesa Apartments, No. 08-23-00035-CV, 2023 WL 4089446, at *2 (Tex. App.-El Paso June 20, 2023, no pet.) (citing Hernandez v. U.S. Bank Tr. N.A. for LSF8 Master Participation Tr., 527 S.W.3d 307, 309 (Tex. App.-El Paso 2017, no pet.)). Here, the record before us does not contain a copy of Appellant's surety bond, nor is there anything in the record to reflect that the trial court reviewed the sufficiency of the bond in the first instance. As such, at this time, we are unable to determine whether the trial court abused its discretion or addressed the evidentiary challenges to the sufficiency of Appellant's bond. See id. (denying the appellee's motion to review trial court's ruling on supersedeas bond where the record was insufficient for the court of appeals to determine whether the trial court abused its discretion).
We DENY Appellee's Motion to Strike Surety Bond.
IT IS SO ORDERED.
Barajas, C.J. (Senior Judge), sitting by assignment