Opinion
14-23-00503-CV
02-15-2024
PEDRO RAMIREZ AND ALMA RAMIREZ, Appellants v. ALICIA PEREZ, Appellee
Memorandum Opinion filed November 21, 2023
On Appeal from the 454th District Court Medina County, Texas Trial Court Cause No. 16-12-23965-CV
Panel Consists of Justices Jewell, Spain, and Wilson.
ORDER
PER CURIAM
Appellants' motion for rehearing is granted. Appellants' motion for en banc reconsideration is dismissed as moot. This court's November 21, 2023, memorandum opinion is withdrawn, and our judgment of that date is vacated. This appeal is reinstated on the court's docket.
Appellee's brief is due thirty days from the date of this order.
The ruling granting appellee's motion to dismiss filed July 11, 2023 is withdrawn, and the motion to dismiss is carried with the case.
CONCURRING MEMORANDUM OPINION ON REHEARING
Charles A. Spain, Justice
I concur in granting the motion for rehearing as this court erred in dismissing the appeal.
Appellants correctly point out that the appellee's motion to dismiss was not verified. See Tex. R. App. P. 10.2. While that is not the sole reason we erred in granting the motion to dismiss, in retrospect this court should have notified the movant, given appellants an opportunity to cure, and considered the motion in greater depth.
Having independently concluded that this court has subject-matter jurisdiction, I concur in granting both the motion for rehearing and the requested relief of reinstating the appeal.
When we reinstate this appeal, we should direct the clerk of this court to note on this court's docket that the clerk's record containing the notice of appeal is both a "Clerk's record filed" and "Notice of appeal filed in the court of appeals." On initial review, the clerk's record seemingly did not contain a notice of appeal as required by Texas Rule of Appellate Procedure 34.5(a)(7). This is problematic because this court must determine independently its subject-matter jurisdiction. Further review reveals there is another clerk's record that does contain the notice of appeal. The June 8, 2023 notice of appeal was delivered to the clerk of the Fourth Court of Appeals on June 12, 2023 as a part of a clerk's record that also included the trial court's March 12, 2023 final judgment and the April 12, 2023 motion for new trial and motion to modify the judgment. A separate copy of the notice of appeal was also delivered to the clerk of the Fourth Court of Appeals on June 13, 2023 as required by Texas Rule of Appellate Procedure 25.1(e) (party must deliver), (f) (trial-court clerk must deliver). While the initial Rule 25(f) duty of the trial-court clerk to deliver the notice of appeal is not required to be in the form of a clerk's record (and I have never seen this done before), I nonetheless conclude the notice of appeal is in a clerk's record and was timely filed. See Tex. R. App. P. 26.1.