Chavez v. Housing Authority of City of El Paso

“peculiar are to it as a transferee of applicable under federal statutes

FDIC certainly

rule It is reasonable of law.” six-year the federal limitation

conclude that

period “right” “peculiar” is a which

Bank as a successor interest of One Jackson,

FDIC. See the record before trial court

Based on temporary injunction hearing, time of

we it was within trial believe enjoin temporarily fore GFS’s

discretion theory proceedings on the the “Sell

closure Rights”

er’s clause the six- Retained includes

year pertaining to the of limitations statute Cadle, and deed of trust.

Blubaugh note Cf. possibili n. 2 (recognizing at 179

ty may have extended that seller reserved sale period agreement). loan

limitations

Therefore, to the extent that trial court injunction on the basis that Bank

issued the may

One retained the loan sale have

agreement rights its under section

1821(d)(14), they pertain as to the note and GFS,

deed of trust sold to we hold that the

trial its court did abuse discretion be- interpretation agreement of the

cause this

provides concluding a reasonable basis for

that Meacham and Practice have a Place

probable limitations defense to collec- GFS’s

tion efforts under the state limitations stat-

ute. above,

For the reasons stated we affirm granting

the order of the court Meacham and injunctive prayer for

Practice Place’s relief injunction. temporary CHAVEZ, Appellant,

Elfida OF the

HOUSING AUTHORITY CITY PASO, Appellee.

ELOF

No. 08-93-00422-CV. Appeals

El Paso.

April Fernandez-Gonzalez, Legal El Paso

Justo Assistance, Paso, appellant. El Dunbar, Crowley, Michael C. Edward Barill, Paso, appellee. El Dunbar & timely signed if a mo- judgment is after the ON MOTION OPINION by any party filed for new trial has been tion REHEARING FOR any party has ifor PER CURIAM. of law and conclusions of fact jury.” [Emphasis in a case tried without THE CASE NATURE OF Tbx.R.App.P. 41(a)(1). in- In the added]. an ad- appealed Appellant Elfida Chavez timely request for cause, a filed stant Chavez entry and jury in a forcible verse verdict conclusions; filed no motion findings she and county by trial de novo to detainer case for new trial. grant- county court at law court at law. The El summary judgment in favor of the ed in Tex. emphasized provision The (“EPHA”) Authority and Cha- Housing Paso R.App.P. 41(a)(1) clearly relates Tex. Appellant’s Mo- appealed to this Court. vez 296, party to only entitles a which R.Civ.P. Rehearing granted; is we withdraw tion for in conclusions of law findings of fact and 9, and substitute opinion of March 1995 our county court in the district or cases “tried appeal for following. dismiss the jury.” A is “tried” when a case without of want evidentiary hearing before there is an Besing conflicting v. upon evidence. court PROCEDURAL STATEMENT (Tex.App. Moffitt, 882 S.W.2d 79 — Amarillo OF FACTS Luce, 1994, writ); 840 Timmons v. no summary county granted court at law The writ). 1992, 582, no (Tex.App. Tyler 586 — 28, filed a judgment on June 1993. Chavez “ignore the interpretation Any other would findings fact conclusions of request for of and 41(a)(1) language rule concise of clear and 1993, 19, past due July and a notice of law meaningless.” word ‘tried’ and render on findings of fact and conclusions of law Robinson, 162, v. Zimmerman 13, August deposit in lieu of 1993. Her cash writ). 1993, (Tex.App no 164 . —Amarillo appeal bond on was filed with the dis- cost Thus, in findings appropriate fact are of 27, September trict clerk on 1993. trial court which the those circumstances appeal EPHA moved to dismiss Chavez’ questions of fact. upon to determine is called 1, jurisdiction February 1994. for want of 82; City at Grand Besing, 882 S.W.2d of published EPHA’s motion in a We denied 270, 273 City Irving, 441 S.W.2d Prairie v. of opinion. Housing Authority, v. 876 writ). 1969, no When (Tex.Civ.App. — Dallas (Tex.App. Paso no S.W.2d 416 relief, — El summary judgment grants a trial court writ). prior Having that our determined genuine is no issue it determines that there implicitly has been overruled fact, summary judgment that a material so of decision, subsequent Supreme Court we re not been “tried” within proceeding has jurisdictional sponte. issue sua visit the purpose of scope Rule 296 or for the of of fact and conclusions requesting of OF APPELLATE EXTENSION 82; at Zimmer Besing, 882 S.W.2d law. TIMETABLE man, Procedure, Appellate Texas Rules of prior ruling in this case Our process 41 Rules 40 and establish dismiss considered EPHA’s motion to appeal. process normal perfecting an The concluding arguments, rejected same filing these perfection appeal of a civil is the for the post-judg bond, that the timeliness deposit, of instead cash or affidavit of a cost or effec than its content giving motion rather inability appeal, and ment pay costs on ap of control the extension tiveness should parties. It is the thereof to all other notice Chavez, pellate documents deadlines. of these timetable for opin However, after our seven months critical in this case. “When becomes which square issued, Supreme Court the Texas required, the ion security appeal is for costs on subject in Linwood ly filed addressed thereof shall be or affidavit lieu bond (Tex. 102, thirty days after the NCNB within with the clerk fact 1994), of holding that or, ninety days “[b]ecause signed, within is agree findings and conclu place no in a that a and conclusions of law have appel summary judgment proceeding, [appel sions constitutes an filing of a Rule That late The mere late] timetable was extended.” jurisdiction request does not invoke the ruling premised upon a construc 41(a)(1) bonds, appeals. Appeal notices language tion of the a court Rule jury” appeal, not include a or affidavits of “tried without does summary judgment appeal, with the clerk of the proceeding. We are ac costs on court, a court cordingly decision.1 trial invoke the bound the Linwood Tex.R.App.P. 40(a)(l)-(2); cause, appeals. see El In the instant no motion for Parlor, deposit Sharky’s Inc. v. Am to file a cash or Paso Billiard extension time that, appeal paran, 831 S.W.2d bond was filed. Absent Chavez’ denied). signifi appeal nullity This distinction is attempted is a which necessi writ light cant in of Linwood and the authorities tates dismissal from the Court’s docket. Seelbinder, 680, therein. These “bona fide at Wilcox v. 840 S.W.2d 688 addressed denied). 1992, tempt” all instruments which writ eases involved See, appeal actually appellate that this was not invoke therefore conclude Linwood, timely perfected juris e.g., (holding at 103 and this Court has no 885 S.W.2d appeal diction to the merits of the case. notice of filed when not authorized address appellate attempt was a fide to invoke bona BONA FIDE ATTEMPT TO INVOKE Antonio, jurisdiction); City San 828 of APPELLATE JURISDICTION (holding appeal of S.W.2d at 418 a notice merits, a argument wrong At the filed in the cause number was bona oral on appellate jurisdiction); request findings attempt that her fide to invoke asserted Dist., Independent of fact and conclusions of law a bona fide Grand Prairie School 813 was See, attempt (holding appeal of appellate S.W.2d at 500 notice Linwood, 103; e.g., City attempt a bona fide 885 S.W.2d at when authorized was Walker, 417, Rodriguez, appellate jurisdiction); to 776 San Antonio v. 828 S.W.2d invoke (Tex.1992) curiam); (per (holding at 581 affidavit of to Mueller Sar S.W.2d avia, (Tex.1992) (per appeal substantially complied costs curiam); in Independent requirements, with and was sufficient to Grand Prairie School Inc., jurisdiction). the Imports, appellate Dish v. Parts 813 voke While Su Southern (Tex.1991) Mueller, curiam); in (per preme Court’s Apartments, speaks Blue at 609 in terms of a motion for Walker v. Water Garden (Tex.1989). trial filed under an incorrect cause num 580-81 We dis new plenary power logical and upon 1. It is to note that based the defini extend both the trial court’s perfecting appeal the same tion of "trial” as contained in Linwood and Bas the time for an in trial, TexR.App.P. ing, summary judgment proceeding has not manner as a motion for new a 41(a)(1) provides appellate purposes that the timetable is been “tried” for trial, of a motion for new Although Supreme only by new the extended the of a motion for either. has fact and conclu noted that a for new trial is not necessari trial or a motion Thus, summary apparent ly inappropriate following entry Rules are in sions of law. the judgment despite concept opening window to fact that no "trial” was conflict. The the the had, Casualty perfecting appeal actually arises Torres v. Western and Sure allow additional time (Tex.1970), ty a trial court Company, 457 S.W.2d 50 that case no doubt from the intention that judgment ability progeny pre-date to alter or withdraw its and its Linwood. If have power. inappropriate during plenary the trial fact conclusions of law are its To extend and days appellate plenary power a court's to a maximum of 105 extend the timetable because sum “trial”, requiring perfection appeal mary judgment within 30 does not constitute a we while certainly places hard-pressed days are to understand how a motion for makes little sense and left, (s)he jeopardy any appropriate. practitioner in if relies Rule new trial is then, more We are appellate rug pulled question to have the out from under with the of whether the 329b appellate may following construction sum neath an court's strict timetable ever be extended 41(a)(1). mary judgment. options appear We do not believe that such Available would of Rule correct, reform, approach justice modify, hypertechnical either or fosters to be motions to However, 329b(d). judicial economy. these Rules judgment. Yet until vacate the Tex.R.Civ.P. definitively 329b(g) provides construed that a motion are harmonized or while Tex.R.Civ.P. Court, judgment Supreme we caution. modify, shall advise correct or reform AMEND TO attempt OPPORTUNITY constituting a bona fide ber as jurisdiction, appellate the facts of invoke of the Su not unmindful We are import the true of the deci ease indicate Prairie, preme direction Grand case, peculiar facts of the sion—under the Linwood, 885 S.W.2d at 500 and properly was filed so the motion dismissing appeal, a an at 103 that before and appellate had been extended timetable putative give should appeals court of may timely perfected.2 Mueller appeal error. opportunity to correct her appellant an construed as address appropriately more be however, cases, appel In of those both to extend a trial ing a bona fide incorrectly filed a notice but lant had jurisdiction its own court’s over bond. The error appeal in lieu of a cost for new trial does not and since a motion case, In the instant thus be remedied. could jurisdic appellate an of itself invoke appellate designed to invoke no document filed, new trial properly tion. If a motion for day thirty within the was filed an merely the time frame which extends accordingly incura window and the error may perfected. another appeal be Stated ble. trial way, improperly an filed motion for new appellate will not extend the timetable CONCLUSION thirty day perfected appeal an outside jurisdic for want of window will be dismissed of fact hold that a tion. It follows that the same result should summary judg law after and conclusions of improper request an occur with is not a bona fide ment is rendered and conclusions. jurisdiction. Because appellate attempt to in no bona fide there has been that It is clear from these cases jurisdiction, appeal must appellate the voke perfect an errors in the instrument filed to dismissed, prior opinion be and this Court’s itself, appeal, filing and minor in the errors case, Housing Authority, v. this deprive do not this Court of 1994, no (Tex.App. Paso — El timing perfec as to Material errors the writ), is overruled. tion, however, juris deprive do this Court Parlor, Sharky’s diction. El Paso Billiard LARSEN, J., concurs. Inc., 831 Chavea; deposit attempting filed her cash LARSEN, Justice, concurring. perfect appeal ninety-one days3 after her that we are bound summary judgment signed. agree There was I with the Court was trial, reconsider, holding in Linwood v. NCNB no motion for new motion to the (Tex.1994), vacate, correct, a re- modify, and that or motion to or re- quest findings of fact and conclusions judgment form filed such that her cash de- running appel- thirty days sign- of the posit was due within of the law will not extend Tex.R.App.P. 41(a)(1).4 set out in our ing judgment. late deadline. For the reasons Therefore, opinion on motion to dismiss pre-Linwood has no this Court however, express my timely appeal, I wish to appeal because it was not this Chavez’ bond, Supreme rea- disagreement cash with the perfected of a cost Housing soning costs in that case. See Chavez deposit, or affidavit of Paso, Authority City El appeal. purport distinguished it either Supreme carefully and did not to overrule Court decided" 2.The implicitly explicitly. Berry, or facts in Mueller from Philbrook v. (Tex.1985) (orig. proceeding) curiam) day Sunday. (per that in which the Court had held 3. The ninetieth fell on new trial filed in a cause when a motion for is containing judgment which the motion decide whether 4. We do not here reconsider, assails, power judg plenary the court's over its trial or motion to motion for new vacate, correct, thirty days beyond modify ment not extended or reform the 329b(a). appellate as prescribed by timetable The Mueller would have extended Tex.R.Civ.P. presently us. properly that is not before that was issue "assum[ed] Philbrook no 417-18 writ). It consistent and ra would be more pleadings post-judgment

tional to all treat seeking

seeking judgment, that or to assail it, extending appellate

elaboration on as view, my ques

deadlines. In the technical might legal a motion

tions of what effect held,

have, whether “a trial” has been named, pleading appropriately

what a is most pitfalls. These

serve to create technical rule, in stark contrast to the liberal

stand Linwood, any

also relied “bona attempt” perfecting appeal

fide invokes If appellate there is distinction, escapes

a sound reason for this it Nevertheless, Supreme opin

me. I concur.

ion binds us. Wayne MORRIS, Appellant,

Darren Texas, Appellee.

The STATE of

No. 08-93-00301-CR. Appeals of

Court of

El Paso.

April

Case Details

Case Name: Chavez v. Housing Authority of City of El Paso

Court Name: Court of Appeals of Texas

Date Published: Apr 13, 1995

Citation: 897 S.W.2d 523

Docket Number: 08-93-00422-CV

Court Abbreviation: Tex. App.