Guy Grantham v. Racefab, Inc., 12-15-00148-CV

Appellant Guy Grantham’s appeal was dismissed by the court for failing to make arrangements to pay for and file the clerk’s and reporter’s records.
Grantham filed a motion for extension of time to file a motion for rehearing, explaining he had requested a writ of execution to determine whether appellees possessed assets sufficient to satisfy his judgment; if no assets existed he would dismiss the appeal and avoid the expense of pursuing it.
Grantham requested the writ from the Cherokee County Sheriff on July 6, 2015; the sheriff had not executed the writ by the time of filing the rehearing motion.
The court denied Grantham’s motion for extension and dismissed the appeal for nonpayment/nonfiling; Grantham then moved for rehearing and asked the court to reinstate the case and allow time to cure the record-payment defect.
Grantham relied on Texas precedent that disfavors dismissals for harmless procedural defects and urges that appellate rules be construed reasonably and liberally so appeals are decided on the merits.
He cited multiple appellate orders reinstating appeals after dismissal for failure to pay or file records and requested a reasonable time to cure the defect rather than loss of appellate review.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether dismissal for failure to pay/file record was appropriate without allowing time to cure	Grantham: dismissal was premature; he sought a reasonable extension and the sheriff’s delay prevented payment; the defect is harmless and curable	Appellees: (no opposition to extension was filed)	Court dismissed the appeal; Grantham moved for rehearing seeking reinstatement (motion argues dismissal was improper under precedent)
Whether appellate courts should liberally construe rules to avoid forfeiture of appeal for technical defects	Grantham: invoke Verburgt and similar cases that require reasonable opportunity to cure procedural defects	Appellees: (no opposing brief cited)	Grantham urges reinstatement based on controlling Texas precedent favoring relief and cure on rehearing
Whether a writ of execution delay justifies tolling or extension to permit filing the record	Grantham: sheriff’s nonexecution prevented him from ascertaining collectable assets and thus from paying for the record; extension was necessary	Appellees: (no opposition)	Grantham contends the delay made dismissal an unfair forfeiture; seeks reinstatement to permit cure

Verburgt v. Dorner, 959 S.W.2d 615 (Tex. 1997) (appellate rules disfavor disposing of appeals based on harmless procedural defects)
Grand Prairie Ind. Sch. Dist. v. Southern Parts Imports, Inc., 813 S.W.2d 499 (Tex. 1991) (rules should be construed reasonably to preserve the right to appeal)
Jamar v. Patterson, 868 S.W.2d 318 (Tex. 1993) (same instruction to construe rules to protect appeal rights)
Crown Life Ins. Co. v. Estate of Gonzalez, 820 S.W.2d 121 (Tex. 1991) (decisions should turn on substance rather than procedural technicality)
Higgins v. Randall County Sheriff’s Office, 193 S.W.3d 898 (Tex. 2006) (court may dismiss for noncompliance only after allowing reasonable time to correct the defect)
Ex parte F.F.A., 173 S.W.3d 605 (Tex. App.—Waco 2005, pet. denied) (party must be given reasonable opportunity to cure defective filing before dismissal)
Roger Wu v. Star Houston, Inc., 110 S.W.3d 8 (Tex. App.—Waco 2002, no pet.) (reinstating appeal after dismissal for failure to file clerk’s record)