Case Information
*0 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 9/28/2015 4:22:17 PM KEITH E. HOTTLE Clerk *1 ACCEPTED 04-15-00548-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 9/28/2015 4:22:17 PM KEITH HOTTLE CLERK
NO. 04-15-00548-CV IN THE COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS SAN ANTONIO
R UFINA R EYES Y ANEZ
Appellant , v.
A MERICAN G ENERAL L IFE I NSURANCE C O .
Appellee . O N A PPEAL FROM T HE 341 ST J UDICIAL D ISTRICT C OURT OF W EBB C OUNTY , T EXAS
Trial Court Cause No. 2014CVF000504 D3 APPELLEE’S RESPONSE TO APPELLANT’S NOTICE OF COURT TO
ABATE THE APPELLATE PROCEDURE ON THIS CASE David T. McDowell E DISON , M C D OWELL & H ETHERINGTON LLP State Bar No. 00791222 Phoenix Tower
Jason A. Richardson 3200 Southwest Freeway, Ste. 2100 State Bar No. 24056206 Houston, Texas 77027 Robert P. Debelak III Telephone: 713-337-5580 State Bar No. 24078410 Facsimile: 713-337-8850 david.mcdowell@emhllp.com jason.richardson@emhllp.com bobby.debelak@emhllp.com Counsel for Appellee
I. Introduction.
1. In a misguided attempt to avoid dismissal of her time-barred appeal, Plaintiff-Appellant Rufina Reyes Yanez filed a “Notice of Court to Abate the
Appellate Procedure on This Case” (the “Notice”). The Notice is not really a
notice, but a disguised motion [1] seeking an order abating these proceedings for an
indefinite period. The Court should deny the relief sought in the Notice because it
lacks jurisdiction to hear this appeal.
II. Procedural History.
2. The trial court granted summary judgment in favor of Appellee American General Life Insurance Company on May 13, 2015 (the “Judgment,”
attached as Exhibit 1). Pursuant to the Judgment, all of Appellant’s claims were
dismissed with prejudice. Judgment, ¶ 3. The Judgment further provides that it “is
a final order that dispenses with all claims before the Court.” Id . Appellant filed her “Motion to Set Aside the May 13, 2015 Order
Granting Defendant’s Traditional Motion for Summary Judgment” on June 5, 2012
(“Motion to Set Aside,” attached as Exhibit 2). This was clearly a motion for a
new trial, as Plaintiff expressly argued that she was “entitled to a new trial because
the May 13, 2015, order deprived her of her claim for relief regarding conversion.”
*3 Id ., ¶ 16. In her prayer, “Plaintiff ask[ed] the Court to set a hearing on her motion
for new trial and enter a written order within 75 days of May 13, 2015, setting
aside the order granting [Appellee]’s motion for a final summary judgment.” Id ., ¶
19.
4. On June 12, 2015, Appellant filed three separate supplements to the
Motion to Set Aside, entitled as follows:
a. “Supplemental Plaintiff’s Motion to Set Aside the May 13, 2015, Order Granting Defendant’s Traditional Motion for Summary Judgment and in the Alternative Motion for New Trial” (attached as Exhibit 3).
b. “Plaintiff’s Supplement to Her Motion to Set Aside the May 13, 2015, Summary Judgment” (attached as Exhibit 4).
c. “Second Supplement to Plaintiff’s Motion for New Trial” (attached as Exhibit 5).
5. The trial court denied the Motion to Set Aside “in its entirety” on July 20, 2015 (the “July 20 Order,” attached as Exhibit 6). Appellant filed her Notice
of Appeal on September 3, 2015.
III. Legal Argument.
Appellant argues that the Court should abate this appeal because the July 20 Order “did not address [her] Motion for New Trial.” See Notice, ¶ 2.
Appellant makes the strained argument that because she did not file a document
with the phrase “Motion for New Trial” in the title until after filing the Motion to
Set Aside, the trial court did not address her request for a new trial in the July 20
Order. As a result, argues Appellant, her appeal is premature and should be abated
because the trial court has not yet ruled on a pending motion. This is nonsense.
7. A plain reading of the Motion to Set Aside reveals that Appellant
clearly moved the trial court for a new trial. [2] The three documents she filed on
June 12, 2015 were supplements to the Motion to Set Aside, not separate and
distinct motions. Battin v. Samaniego , 23 S.W.3d 183, 185 (Tex. App.—El Paso
2000, pet. denied) (“An amended motion supercedes the original motion; a
supplemental motion is considered in addition to an original motion.”) (citing T EX .
R. C IV . P. 69). As such, there was only one motion before the trial court when it
issued the July 20 Order, and that motion included Appellant’s request for a new
trial.
8. The July 20 Order denied the Motion to Set Aside “in its entirety,” and along with it all of Appellant’s requests for a new trial. There is nothing left
for which the trial court must still issue a ruling. Appellant’s Notice has no basis
in law or fact. Even if the trial court had not yet issued a ruling on some pending
request for a new trial, Appellant’s Notice of Appeal was still untimely because the
filing deadline is not determined by reference to a ruling on a motion for new trial.
Pursuant to Rule 26.1(a) of the Texas Rules of Appellate Procedure, “the notice of
*5 appeal must be filed within 90 days after judgment is signed if any party timely
files … a motion for new trial.” T EX . R. A PP . P. 26(a)(1) (emphasis added). The
“deadline for filing her notice of appeal does not run from the date of the denial of
her motion for new trial, but rather from the date of the signing of the summary
judgment granted for appellees.” Powell v. Linh Nutrition Programs, Inc. , 01-03-
00919-CV, 2005 WL 375334, at *1 (Tex. App.—Houston [1st Dist.] Feb. 17,
2005, no pet.). Here, the Judgment was signed on May 13, 2015. Accordingly,
Appellant only had until August 11, 2015 to file her Notice of Appeal (90 days
after the Judgment). She did not do so until September 3, 2015. As a result, the
Court lacks jurisdiction for this matter and should dismiss, not abate, this appeal as
a matter of law.
IV. Conclusion.
For the reasons set forth herein and in Appellee’s Motion to Dismiss, the Court should deny the request for relief in Appellant’s Notice and dismiss this
appeal for want of jurisdiction.
Respectfully submitted, E DISON , M C D OWELL & H ETHERINGTON LLP By: a David T. McDowell State Bar No. 00791222 Jason A. Richardson State Bar No. 24056206 Robert P. Debelak III State Bar No. 24078410 3200 Southwest Freeway, Suite 2100 Houston, Texas 77027 Telephone: 713-337-5580 Facsimile: 713-337-8850 Attorneys for the Appellee CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been served on the 28 th day of September, 2015, on the following counsel of record by US Mail
and email:
Armando Trevino
1519 Washington St., Suite One
Laredo, TX 78042-0544
armando_trevinolaw@hotmail.com
armandotrevinolaw@gmail.com
a Jason A. Richardson *7 CERTIFICATE OF COMPLIANCE Per Texas Rule of Appellate Procedure 9.4(i), I hereby certify that this document has 954 words, as calculated by Microsoft Word, the word processing
software used to create the document.
a Jason A. Richardson
[1] The Notice did not contain a certificate of conference, which is required of all motions pursuant to Rule 10.1(a)(5) of the Texas Rules of Appellate Procedure. Appellant cannot escape this requirement by naming her filing a “notice” as opposed to a “motion.” Appellee objects to the Notice because of this deficiency.
[2] See Surgitek, Bristol-Myers Corp. v. Abel , 997 S.W.2d 598, 601 (Tex. 1999) (“[Courts] look to the substance of a motion to determine the relief sought, not merely to its title.”).