Elishah Sawyers, Pax Crate & Freight, Inc. and Robin Sawyers v. Marc Carter and Sally Carter
01-14-00870-CV
| Tex. App. | Mar 18, 2015Background
- Judgment was signed September 12, 2014; no motion for new trial was filed. Appellants' notice of appeal was due October 12, 2014 but was filed October 27, 2014.
- Appellees moved to strike the late notice of appeal; the appellate court denied the motion to strike but asked appellants to explain the late filing and show jurisdiction.
- Appellants asserted they did not learn of the default judgment in time because the trial-court clerk and appellees failed to give notice; they asked the appellate court to accept this as a "reasonable explanation."
- Appellees (Carters) reply that appellants (Sawyers) failed to seek relief in the trial court under Tex. R. Civ. P. 306a.5 (and Tex. R. App. P. 4.2), which is a jurisdictional prerequisite to extend filing time when notice of judgment was not received.
- Appellees argue appellants also failed to file a motion to extend under Tex. R. App. P. 26.3 and that pro se status does not excuse the procedural failures; they request the appellate court strike the notice and dismiss for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument (Sawyers) | Defendant's Argument (Carters) | Held |
|---|---|---|---|
| Timeliness / Subject-matter jurisdiction of appeal | Late notice explained by lack of notice of judgment; appellate court should accept reasonable explanation | Notice was untimely; appellants did not obtain trial-court 306a.5 relief so appellate court lacks jurisdiction | Appellate court lacks jurisdiction because notice was untimely and 306a.5 procedure was not used |
| Availability of Rule 4.2 extension (TRAP) | Entitled to additional time because they did not receive notice within 20 days | Must first obtain trial-court 306a.5 order; failure to do so waives reliance on Rule 4.2 | Appellants cannot rely on Rule 4.2 without a 306a.5 trial-court order |
| Implied extension under TRAP 26.3 (15-day grace) | Notice was filed within 15-day grace period so extension should be implied | No motion for extension was filed; mere late filing within 15 days without motion is insufficient | Appellants did not properly invoke 26.3 by filing a motion; the court queried jurisdiction for that reason |
| Effect of pro se status on procedural defaults | Pro se status should excuse procedural missteps | Pro se litigants are held to same standards; cannot bypass 306a.5 hearing or other requirements | Pro se status does not excuse failure to follow 306a.5 or other jurisdictional prerequisites |
Key Cases Cited
- John v. Marshall Health Servs., Inc., 58 S.W.3d 738 (Tex. 2001) (interpreting requirement to obtain trial-court 306a.5 relief to establish date of notice)
- Mem'l Hosp. v. Gillis, 741 S.W.2d 364 (Tex. 1987) (compliance with rule 306a is jurisdictional prerequisite)
- Verburgt v. Dorner, 959 S.W.2d 615 (Tex. 1997) (definition and application of "reasonable explanation" for late filings)
- Garcia v. Kastner Farms, Inc., 774 S.W.2d 668 (Tex. 1989) (reasonable explanation standard: inadvertence, mistake, or mischance)
- Pena v. McDowell, 201 S.W.3d 665 (Tex. 2006) (pro se litigants held to same procedural standards as attorneys)
- In re Bokeloh, 21 S.W.3d 784 (Tex. App.-Houston [14th Dist.] 2000) (no 4.2 relief absent written trial-court order)
- Grondona v. Sutton, 991 S.W.2d 90 (Tex. App.-Austin 1998) (same)