Opinion
03-23-00099-CV
01-12-2024
PBAC 507 Holdings, LLC, Appellant v. ESA P Portfolio, LLC, Appellee
FROM THE 126TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-22-006521, THE HONORABLE AURORA MARTINEZ-JONES, JUDGE PRESIDING
Before Justices Baker, Triana, and Smith
ORDER
PER CURIAM
On October 10, 2023, we dismissed this appeal for want of prosecution because appellant PBAC 507 Holdings, LLC (PBAC) failed to comply with this Court's orders after twice being ordered to file its appellant's brief by a date certain. The final deadline ordered by the Court was 150 days after PBAC's original deadline.
PBAC filed a motion for rehearing and subsequently filed a motion to accept untimely brief, accompanied by the brief, more than five weeks after the extended deadline to file and over six months after PBAC's original deadline.
In PBAC's motion for rehearing, it contends that the Court's warning in its orders that "failure to comply with the order may result in dismissal of this appeal" was not sufficient notice of our intent to dismiss the case if the brief was not timely filed, citing Rule 42.3's ten-day notice requirement. See Tex. R. App. P. 42.3. Rule 42.3 provides the Court with discretionary authority to dismiss an appeal in a variety of circumstances:
Under the following circumstances, on any party's motion-or on its own initiative after giving ten days' notice to all parties-the appellate court may dismiss the appeal or affirm the appealed judgment or order. Dismissal or affirmance may occur if the appeal is subject to dismissal:
(a) for want of jurisdiction;
(b) for want of prosecution; or
(c) because the appellant has failed to comply with a requirement of these rules, a court order, or a notice from the clerk requiring a response or other action within a specified time.Id. (emphases added). Each of our two orders warning of dismissal if the brief was not timely filed was issued 30 days before the ordered deadline.
PBAC argues that the Court is required "to issue a ten day notice to all parties that it will dismiss the case, and to state the reason such dismissal is warranted under the rule." "May" indicates our intent to use the discretionary power granted to us under the Texas Rules of Appellate Procedure to dismiss for want of prosecution if a brief is not timely filed. See, e.g., Tex. Gov't Code § 311.016(1) ("'May' creates discretionary authority or grants permissions or a power."). We also cited to Texas Rule of Appellate Procedure 38.8(a) in both briefing-deadline orders. Rule 38.8(a) provides that in a civil case, "[i]f an appellant fails to timely file a brief, the appellate court may: (1) dismiss the appeal for want of prosecution, unless the appellant reasonably explains the failure and the appellee is not significantly injured by the appellant's failure to timely file a brief . . . ."
In this case, PBAC failed to timely file its brief and also failed to reasonably explain the failure before dismissal. After multiple motions for extension of time had been granted for PBAC's brief, we issued our first order extending PBAC's brief deadline to 120 days after the original due date. PBAC's prior counsel then filed a motion to withdraw five days before the ordered deadline. PBAC's new counsel subsequently filed another motion for extension of time. Instead of dismissing for want of prosecution and failure to comply with our order then, we granted that motion by order and ordered PBAC to file its brief no later than September 29. We specifically stated: "No further extension of time will be granted, even if future changes of counsel occur, and failure to comply with this order may result in dismissal of this appeal. See Tex. R. App. P. 38.8(a)."
Instead of filing a brief, PBAC filed a motion to abate at 4:58 p.m. on the ordered brief deadline of September 29. PBAC's counsel attached to the motion a request to supplement the clerk's record that he filed in the trial court on September 28 at 5:30 p.m. No explanation was provided in the motion to abate for why counsel waited until the last possible moment to file the request to supplement and motion to abate. The Court did not grant the motion to abate because the request for the supplemental record did not stop counsel from preparing the brief. All of the documents that counsel sought to include in a supplemental record were documents filed by his client. Thus, the documents were in PBAC's files or accessible through the Travis County District Clerk. Counsel should have prepared and filed the brief by the ordered deadline while requesting supplementation of the clerk's record for the Court's benefit. If necessary, PBAC could have supplemented its brief later with citations to the supplemental clerk's record. Appellee opposed the last-minute motion to abate, pointing out that the clerk's record had been on file for over six months and complaining of the gamesmanship engaged in by PBAC. We concluded that the motion to abate did not provide a reasonable explanation for PBAC's failure to timely file its brief.
In its motion for rehearing, PBAC also incorrectly relies on case law discussing the trial court's inherent authority to dismiss for want of prosecution and Texas Rule of Civil Procedure 165a's requirement that a plaintiff must be provided with notice and an opportunity to be heard before dismissal. Those cases and that rule are inapposite to the situation here. This Court is not a trial court.
We admonish PBAC and its counsel that this Court views their disregard of our orders and their actions before the Court with disfavor. However, mindful of the Texas Supreme Court's admonition that "appellate courts should reach the merits of an appeal whenever reasonably possible," Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008), we withdraw our previous opinion and judgment issued on October 10, 2023, and we grant the motion for rehearing filed by PBAC and reinstate the appeal. We grant PBAC's motion to accept untimely brief and file the brief as of the date of this order.
It is ordered