Brown Mechanical Services, Inc. v. Mountbatten Surety Co.
377 S.W.3d 40
| Tex. App. | 2012Background
- Brown filed a bill of review Feb 21, 2006 to vacate a 2004 agreed judgment; service on Mountbatten is not shown.
- Trial court notified Brown of intent to dismiss for want of prosecution on Jan 22, 2007.
- Brown filed a motion to retain on Jun 29, 2007; no further action until Feb 17, 2010 when a new deadline was set.
- March 15, 2010 Brown filed a second motion to retain; an amended petition was served Apr 26, 2010.
- May 25, 2010 the case was dismissed for failure to comply with notice dates; Brown filed a motion to reinstate on Jun 24, 2010.
- The motion to reinstate was heard Aug 2, 2010; no reporter’s record was filed; motion deemed overruled by operation of law on Aug 23, 2010; Brown filed a notice of appeal Sep 8, 2010 (untimely).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Brown’s notice of appeal was timely | Brown | Mountbatten | Untimely; lacks jurisdiction |
| Whether Rule 26.3 extension could save the appeal | Brown | Mountbatten | No proper extension; failed to justify late filing |
| Whether absence of a reporter’s record forecloses review of abuse-of-discretion issues | Brown | Mountbatten | Record缺失; cannot determine abuse; but jurisdiction already lacking |
Key Cases Cited
- Verburgt v. Dorner, 959 S.W.2d 617 (Tex.1997) (implied 15-day extension mechanism for late appeals)
- Weik v. Second Baptist Church of Houston, 988 S.W.2d 437 (Tex.App.-Houston [1st Dist.] 1999) (notice of appeal deadline runs from judgment sign date with timely reinstate motion)
- Hosey v. County of Victoria, 832 S.W.2d 701 (Tex.App.-Corpus Christi 1992) (jurisdictional issues; timeliness rules)
- Jones v. City of Houston, 976 S.W.2d 676 (Tex.1998) (requirement to explain late filing for extension)
- Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628 (Tex.1999) (abuse-of-discretion standard for dismissal for want of prosecution)
- Cappetta v. Hermes, 222 S.W.3d 160 (Tex.App.-San Antonio 2006) (application of Rule 165a(3) to dismissals for want of prosecution)
- Brown v. Howeth Invs., Inc., 820 S.W.2d 900 (Tex.App.-Houston [1st Dist.] 1991) (reinstatement standard after dismissal for want of prosecution)