Opinion
03-24-00236-CV
11-15-2024
Rickye Henderson; Top & Ball Properties, LLC; and Curtis Meeks, Appellants v. Ali Arabzadegan, Appellee
FROM THE 353RD DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-23-001138, THE HONORABLE JAN SOIFER, JUDGE PRESIDING
Before Chief Justice Byrne, Justices Triana and Kelly
ORDER
PER CURIAM
On July 12, 2024, appellants Top & Ball Properties, LLC, and Curtis Meeks filed a notice of appeal. Top & Ball and Meeks appeal from the amended final judgment signed by the trial court on April 4, 2024. Meeks, acting pro se, timely filed a motion for new trial and a request for findings of fact and conclusions of law on his own behalf on April 24, 2024, making his notice of appeal due to be filed on or before July 3, 2024. See Tex. R. App. P. 26.1(a)(1)-(4) (requiring notice of appeal to be filed within 90 days after judgment is signed if any party timely files a deadline-extending motion). That July 3, 2024 deadline might have been extended until July 18, 2024, if Top & Ball and Meeks had filed a notice of appeal with the trial court and a motion for extension of time with this Court within 15 days after the deadline for filing the notice of appeal. See id. R. 26.3 (requiring timely filing of motion complying with Rule 10.5(b)). Although Top & Ball and Meeks filed their notice of appeal within the 15-day period (nine days after the deadline), they failed to file a motion for extension of time informing this Court of "the facts relied on to reasonably explain the need for an extension." See id. R. 10.5(b)(1)(A), (C); id. R. 10.5(b)(2)(A).
Appellant Rickye Henderson filed his notice of appeal from the April 4, 2024 amended final judgment on April 10, 2024, initiating this appeal. Rule 26.1(d) allows Top & Ball and Meeks to file a notice of appeal within the time provided in Rule 26.1(a) or within 14 days of Henderson's filing of a notice of appeal, whichever is later. See Tex. R. App. P. 26.1(d).
Meeks's attempted filing of the deadline-extending postjudgment motions on behalf of Top & Ball was ineffective because he is not a licensed attorney, see, e.g., Tex. Gov't Code §§ 81.101-.102 (prohibiting practice of law in Texas unless person is member of state bar); id. §§ 83.001-.006 (prohibiting unlicensed persons from practicing law without a license); Tex.R.Civ.P. 7 (allows person to represent himself pro se only to litigate rights on his own behalf, not to litigate rights in a representative capacity); see also Jimison v. Mann, 957 S.W.2d 860, 861 (Tex. App.-Amarillo 1997, order) (per curiam) (striking documents filed by layperson having no authority to file them on behalf of another). However, because Rule 26.1(a) extends the deadline for filing a notice of appeal to 90 days if any party timely files a deadline-extending postjudgment motion, Top & Ball's deadline for filing the notice of appeal remains the same as Meeks's deadline. Top & Ball and Meeks are both represented by counsel on appeal.
Arabzadegan filed an opposed motion to dismiss Top & Ball and Meeks's appeal for want of jurisdiction, arguing that their notice of appeal was untimely. Top & Ball and Meeks failed to respond to Arabzadegan's motion to dismiss. After they failed to timely respond to the motion to dismiss, this Court requested a response. They subsequently filed a response, belatedly requesting that we grant additional time to file their notice of appeal, or alternatively, allow them to file an amended notice of appeal. Arabzadegan filed a reply.
In Top & Ball and Meeks's response, they incorrectly assert that the deadline to timely file the notice of appeal under Rule 26.1 was July 5, 2024. For the reasons explained below, we conclude that none of the reasons they offer for their untimely filing (even under their erroneous calculation) "reasonably explain the need for an extension," as required by Rule 10.5(b).
A reasonable explanation means "any plausible statement of circumstances indicating that failure to file within the [required] period was not deliberate or intentional, but was the result of inadvertence, mistake or mischance." Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 669 (Tex. 1989) (interpreting former Rule 41(a)(2)) (quoting Meshwert v. Meshwert, 549 S.W.2d 383, 384 (Tex. 1977)) (emphasis added); see also Hone v. Hanafin, 104 S.W.3d 884, 887 (Tex. 2003) (per curiam) (explaining that courts of appeals should consider whether appellants offer "a plausible good faith justification for filing their notice of appeal when they did" and should ordinarily accept appellants' explanations as reasonable unless their conduct was deliberate or intentional). "In other words, default arising from negligence, as opposed to intentional or deliberate choice, equates [to] a reasonable excuse." Kidd v. Paxton, 1 S.W.3d 309, 310 (Tex. App.-Amarillo 1999, no pet.). As directed by the Texas Supreme Court, we must "assess the reasonableness of the excuse by gauging its plausibility." Id. at 312 (relying on Garcia).
In their response, Top & Ball and Meeks offer four reasons for their untimely notice: (1) the purported untimeliness of the trial court's ruling on their motion for new trial; (2) the trial court's purported failure to notify them of its signing of an amended judgment on April 4, two days after it signed the original judgment on April 2; (3) their assertion that their prior counsel failed to provide their current counsel with a copy of their file in a timely manner, causing the current counsel to lack knowledge "of what, if any, prior filing to appeal in the trial court's ruling in this case"; and (4) events occurring in other cases. We consider each proffered reason.
First, Top & Ball and Meeks assert their belief that they timely filed their notice of appeal, "given the untimeliness of the trial court's decision to make a post judgment ruling on [Top & Ball and Meeks's] motion for new trial." Top & Ball and Meeks's current counsel appeared in the case on June 4, 2024. On June 10, counsel emailed the trial court seeking a hearing on the motion for new trial before the 75th day after the judgment was signed, June 18. See Tex. R. Civ. P. 329b(c) (establishing that if motion for new trial is not determined by written order signed within 75 days after judgment is signed, it will be considered overruled by operation of law on expiration of 75-day period). On June 11, the trial court responded (through court staff), "The Court considered Mr. Meeks'[s] Motion for New Trial on submission and it is DENIED. A copy of this email will be filed in the Clerk's record, but if you would like an order you may draft one and send it to me for signature." Thus, the trial court informed Top & Ball and Meeks that the motion for new trial would be denied and that it would sign a written order to that effect if they submitted one before the date of the motion's being overruled by operation of law on June 18. The trial court's decision was not untimely.
Despite including as a response exhibit the email from the trial court (which is also included in the clerk's record), which shows that the email was addressed to their counsel and sent on June 11, Top & Ball and Meeks assert in the response that they "did not receive notice of the trial court's ruling on the motion for new trial for twenty-nine days after the motion had been filed with the court, when a representative of the trial court sent an email to [their] attorney of record." This assertion is immediately followed by the inconsistent assertion that they "filed their notice of appeal on July 12, 2024, twenty-nine (29) days after learning the trial court's ruling on their motion for new trial."
Second, Top & Ball and Meeks also assert that the record does not show that they were informed of the amended judgment, but their own response exhibit includes the trial court's notice of the amended final judgment on April 4, 2024, and the clerk's record likewise includes the notices that were mailed to them for the original judgment signed on April 2 and the notices that were mailed to them for the amended judgment signed on April 4. We are not required to accept explanations that are utterly belied by the record. See id. at 312 & n.4. They argue that the trial court's failure to timely notify them of the amended judgment "contributed to their miscalculation in timely filing." However, even if they had only received notice of the original judgment, they do not explain how or why that would have caused them to miss their deadline to file the notice of appeal. If their calculation had been based from the original judgment's date, their notice of appeal would have been due two days earlier.
We also note that Meeks timely filed his motion for new trial.
Third, Top & Ball and Meeks assert that their current counsel lacked knowledge "of what, if any, prior filing to appeal in the trial court's ruling in this case" because of their prior counsel's alleged failure to timely provide their current counsel with a copy of their file and that this lack of knowledge "further contributed to [Top & Ball and Meeks's] untimely filing in their notice of appeal." However, the current attorney's correspondence with the trial court on June 10 about setting the motion for new trial reflects that he was aware of the judgment date and upcoming deadlines. The motion for new trial states the April 4 date that the amended final judgment was signed, and it challenges both that judgment and the trial court's grant of prior counsel's motion to withdraw. These are the rulings that are challenged in the notice of appeal. The notice of appeal expressly states that Top & Ball and Meeks seek to appeal the rulings in the judgment and the trial court's grant of their prior counsel's motion to withdraw. The notice of appeal also erroneously states that "[t]he original judgment or order was signed on April 4, 2024," and that Top & Ball and Meeks's motion for new trial was denied, and "[t]he amended judgement or order appealed from was signed on June 12, 2024." This statement misrepresents the record-there is no judgment or order signed by the trial court on June 12, 2024.
Four, Top & Ball and Meeks state that they were unable to file an amended notice by July 5 (their erroneous deadline) because (1) they had a hearing in another case scheduled for July 3, which was cancelled July 2; and (2) their current counsel was in an all-day hearing in a case for another client on July 5. Neither of these reasons provide a reasonable explanation for their failure to timely file their initial or an amended notice of appeal by the deadline of July 3, given their counsel's demonstrated awareness of the judgment date. Top & Ball and Meeks do not provide a plausible explanation of how either of these events prevented them from timely filing the notice of appeal.
Top & Ball and Meeks argue that we should not dismiss their appeal for a "harmless procedural defect," asserting that we have jurisdiction whenever an "appellant files an instrument in a bona fide attempt to invoke the appellate court's jurisdiction." In effect, they argue that we must exert jurisdiction whenever a notice of appeal is filed within 15 days of the applicable deadline. See id. R. 26.3. We acknowledge that notices of appeal filed within the 15-day deadline for seeking an extension of time to file a notice may be treated, and often are treated, as implied motions for extension of time to file a notice of appeal. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (holding that "a motion for extension of time is necessarily implied when an appellant acting in good faith files a bond beyond the time allowed by Rule 41(a)(1) [now Rule 26.3], but within the fifteen-day period in which the appellant would be entitled to move to extend the filing deadline under Rule 41(a)(2) [now Rule 26.1]") (emphasis added)). However, courts of appeals are not obliged to grant an implied motion for extension filed within the 15-day grace period. See Tex. R. App. P. 26.3 (providing that "appellate court may extend the time to file the notice of appeal" (emphasis added)); see also Harlan v. Howe State Bank, 958 S.W.2d 380, 381 (Tex. 1997) (remanding after Verburgt for court of appeals to determine whether appellants offered reasonable explanation for failure to timely file); Boyd v. American Indem. Co., 958 S.W.2d 379, 380 (Tex. 1997) (same). As explained above, whether we grant a motion for extension depends on whether the appellants provide a reasonable explanation for the untimeliness of the filing, that is, a "plausible good faith justification for filing their notice of appeal when they did." Hone, 104 S.W.3d at 887; see also Tex. R. App. P. 10.5(b)(1)(A), (C); id. R. 26.3(b).
We are mindful of the Texas Supreme Court's admonition that courts of appeals reach the merits of an appeal whenever possible, but we cannot conclude that any of the explanations offered by Top & Ball and Meeks are plausible or made in good faith. The notice of appeal itself misrepresents that the trial court signed an order on June 12 that purportedly amended the April 4 amended final judgment. Coupled with the lack of plausible good-faith explanation for why Top & Ball and Meeks failed to file their notice of appeal by July 3, this misrepresentation to the Court leads us to conclude that the untimely filing was deliberate and intentional.
The Court holds that Top & Ball and Meeks's July 12, 2024 notice of appeal is untimely, and we therefore lack jurisdiction over this appeal. See Tex. R. App. P. 25.1(b) (providing that filing notice of appeal invokes appellate court's jurisdiction); id. R. 2 (establishing that appellate court may not alter time for perfecting appeal in civil case). Accordingly, we grant Arabzadegan's motion, and we dismiss Top & Ball and Meeks's appeal for want of jurisdiction. See id. R. 42.3(a). We restyle the appeal as follows: Rickye Henderson, Appellant v. Ali Arabzadegan, Appellee.
Top & Ball and Meeks also request in the alternative that we grant them additional time to file an amended notice of appeal to add another trial-court order to the list of orders being appealed, incorrectly asserting that the deadline to file an amended notice of appeal was July 5. The Court denies this request. Had Top & Ball and Meeks timely filed their initial notice of appeal, they would be able to file an amended notice to correct a defect or omission without leave of Court before their appellants' brief was filed. See Tex. R. App. 25.1(g). In the absence of a timely filed notice of appeal, we lack jurisdiction over the appeal and thus cannot allow them to file an amended notice of appeal.
It is so ordered.