Opinion
No. 04-15-00126-CV
03-20-2015
WELLS FARGO BANK, N.A., as Trustee for Securitized Asset Backed Receivables L.L.C. 2005-FR4 Mortgage Pass-Through Certificates Series 2005-FR4, Appellant v. KINGMAN HOLDINGS, L.L.C., as Trustee of the Manderly Place 8118 Land Trust, Appellee
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 2014-CI-17188
Honorable John D. Gabriel, Jr., Judge Presiding
ORDER
Appellant has filed a motion to extend time to file its notice of appeal. The trial court rendered a default judgment this case on January 21, 2015. Accordingly, any motion for new trial was due on or before February 20, 2015, in order to extend the deadline for filing the notice of appeal. A motion for new trial was timely filed on February 20, 2015; however, the motion was filed under the wrong cause number. Accordingly, out of an abundance of caution, appellant filed a motion to extend time to file its notice of appeal, concerned that the motion for new trial did not extend the time for filing the notice of appeal because it was filed under the wrong trial court cause number. Appellant's concern is misplaced. Numerous appellate courts and the Texas Supreme Court have held that timely filing a motion for new trial under the wrong cause number evinces a bona fide attempt to invoke appellate jurisdiction and extends the deadline for filing a notice of appeal when there is no suggestion of confusion regarding the judgment sought to be appealed. See, e.g., Mueller v. Saravia, 826 S.W.2d 608, 609 (Tex. 1992); City of San Antonio v. Rodriguez, 828 S.W.2d 417, Leal v. City of Rosenberg, 17 S.W.3d 385, 386 (Tex. App.—Amarillo 2000, no pet.); Matlock v. McCormick, 948 S.W.2d 308, 311 (Tex. App.—San Antonio 1997, no writ). We have reviewed the motion for new trial and it correctly identified the parties and identified the judgment sought to be appealed, i.e., the January 21, 2015 default judgment. We find there could be no confusion regarding the judgment appellant sought to appeal. Accordingly, it was unnecessary for appellant to file an extension and we therefore DENY AS MOOT appellant's motion to extend time to file the notice of appeal because the motion for new trial was proper and timely filed, making the notice of appeal timely as well.
/s/_________
Marialyn Barnard, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 20th day of March, 2015.
/s/_________
Keith E. Hottle
Clerk of Court