*1 individually VERBURGT, and John a/n/f Verburgt, Timothy Verburgt
of Thomas Petitioners, Joseph Verburgt,
and and Methodist M. DORNER Patricia Neal, Antonio, for Petitioners. Jaay D. San Home, Respondents. Mission Antonio, Mainz, Jr., Lau- San Edward C. No. 96-1026. Houston, Best, Naumann, D. rence E. Steven Respondents. for Supreme Texas.
Argued April 1997. SPECTOR, Justice, opinion delivered the PHILLIPS, Court, which Chief 4, 1997. Decided Dec. OWEN, Justice, GONZALEZ, and HECHT Rehearing Feb. 1998. Overruled Justices, join. ease, we decide whether dismissing for erred in appellant, John want of thirty- filed bond on the Verburgt, day after the trial court rendered fourth mistakenly judgment against Verburgt him. timely complied that he had believed Rule of the Rules of Proce- and not concur- dure in the bond did rently the time to file under move motion for hold that a party, implied extension of time is faith, acting cost files a bond within fifteen-day period per- which mits to file a motion to extend. We judgment reverse the therefore to that court. and remand capacity Verburgt, in his individual friend, next sued Constance his children’s Clear, Dorner, and Methodist Patricia infliction of Home for intentional Mission negligent interference emotional distress relationships. After with familial Clear, granted the trial court sum- nonsuited mary remaining defen- judgment for judgment signed was on October dants. The motion for new trial Because no 1995. filed, due with- Verburgt’s cost bond was was 9th. See Tex thirty days, by November R.App. 41(a)(1).2 Verburgt not file the did required, security on for costs were When Rules of Procedure Texas substantially Sep- revised thereof shall be renumbered or affidavit in lieu the bond (1997). All 1997. See 60 B.J. thirty days tember references this after the the clerk within Tex filed with Appellate Procedure in to the Rules of or, ninety days signed, after judgment before that opinion are to the rules effect signed if a motion for date. by any party or if has been filed new trial request findings for 41(a)(1) provides: 2. Rule *2 perfection appeals in criminal 13th, of cases has bond until November he file a nor did significantly differed from our more liberal extend the time to motion to file the bond 524-25; approach. compare days See id. Jones within of the fifteen bond’s due date. Tex.R.App. (Tex.Crim. State, See v. App.1990) (holding that Rule 83 of the Texas later, the appeals Several weeks court of Appellate Rules of Procedure did not entitle why to ordered show cause it appellant notice appeal who filed defective of appeal his of should not dismiss for lack beyond by to the time amend notice allowed jurisdiction. Verburgt’s response demon- appellant the when had not simply that his counsel had miscalcu- strated requested of time an extension under Rule lated the date the bond was due. See 41(b)(2)) Indep. Prairie Grand Sch. Initially, ap- Inc., Imports, Dist. Southern Parts peals jurisdiction to retain of decided Ver- (holding that an bane, burgt’s appeal. rehearing But on en appellate may appeal not dismiss court the itself. court reversed appellant wrong filed the the instru appeals recog- in The court of this case appeal required perfect ment to the without “patent unfairness” it nized the of the result giving appellant opportunity to the correct reached: error). the are, therefore, with the We confronted the question appellate of whether This Court has never wavered from the litigant a result that allows a who condone principle appellate courts should not dis he is late with his to save his knows bond procedural an appeal miss for a defect when appeal appeal, rejects the liti- but any interpretation arguable ever of the Rules faith, gant erroneously, good who in preserve Procedure would the and, he has filed his believes bond repeatedly have held that a satisfied, also believes he has no need thus any of appeals court over to for an extension of time. file appeal files an instru which acknowledged Although Id. the arbitrari- to ment a bona invoke the circumstances, under these ness of dismissal appellate Linwood v. appeals believed court nevertheless Texas, NCNB finality judgments the interest 1994); Dist., Indep. Prairie Sch. Grand policy disposing outweighed the S.W.2d at 500. Our decisions reflect merits. Id. at 656. appellate policy in our rules that embodied disposing upon disfavors based dismissing Verburgt’s appeal, appel- procedural harmless defects.4 See Grand largely upon late a decision court also relied Dist., 813 Indep. Prairie Sch. S.W.2d at 500. by Appeals, of Criminal Olivo Thus, State, ap we the courts of have instructed (Tex.Crim.App.1996). peals to the Rules of Pro Appeals of Criminal itself construe the Court reasonably, yet liberally, so its cedure that the recognized approach to Olivo filing the bond is extended until ten of law in a case tried time for fact and conclusions jury. deposit the contest is sustained unless the If a cash is made after without a bond, that the' is be trial finds and recites affidavit the same shall made within court lieu of period. not filed in faith. same 41(a)(2) provides: 3. Rule 46(f), on motion to dismiss an 4. Under Rule appeal form or substance in for a defect in may granted extension of time An may fifing appellate court allow the filing "the late cost bond or court for of a making deposit new new of a making bond or the deposit or re- notice of (a)(1) as the the trial on such terms by paragraph quired affidavit, or for provides prescribe.” Rule 83 or if such bond notice of made, filed, affirmed reversed shall not be or deposit "[a] or affidavit is filed not irregulari- or day for defects days after al- or ties, dismissed fifteen the last later than and, procedure, either or period, of form a motion is same lowed substance, allowing time to reasonably explain- a reasonable appellate court without filed in irregulari- defects or correct amend such such extension. If a contest or the need for ties_” sustained, bond in lieu of an affidavit S.W.2d at right by imposing re court of believed. is not lost trial court prevail who in the quirements absolutely necessary to 656. Parties effect specified in the time purpose rule. still know within of a See Jamar Patter will son, opponents will whether their see also Rule Gonzalez, appeal. We decline to Crown Ins. Co. v. Estate seek Life *3 substance, 121, as over the dissen- Gay v. elevate form 820 S.W.2d Hillsboro, City ters would. of 1977). of Accordingly, we reverse the to and remand that court justice appeals court dissenting As in the court of the of the Verburgt out, appeals of to allow it to determine whether pointed the result the court explanation for his fail- appeals “absolutely a reached was not neces- offered reasonable Tex.R.App. sary” timely file his bond. See under at 657 ure to these facts. (“[T]he (Duncan, J., dissenting) not issue is patently
whether the rules a unfair comdone it.”) ENOCH, Justice, joined by they require (empha- ABBOTT result but whether Justices, HANKINSON, dissenting. Here, original). of sis in the court acknowledged that demonstrated forward, longer today one need no From that he had made a to bona fide appellate an court’s timely appeal to invoke timely perfect an at 655. See id. just ago, But two months this longstanding rule that for of the
We hold that a motion
extension
Court retained
timely
appeal
appellate
necessarily implied
appellant
only a
filed
invokes
time is
when an
perfect ap-
beyond
jurisdiction.1
to
good
in
faith
We insisted that
acting
files a bond
the
41(a)(1),
case,
appeal must
in a
the notice of
by
peal
time
Rule
within the
civil
allowed
but
in
fifteen-day period
appellant
prescribed
time
the
be filed within the
which the
Tex.R.App.
Further,
we
filing
26.1.
would be entitled to move to extend the
rules. See
P.
41(a)(2).
holding
to
the time which to
deadline under Rule
Our
insisted that
indefinitely
appeal,
one must file not
does not
extend the time which file the notice
“
may
appeal,
a
appeal,
as Justice
the notice of
but in addition
an
Instead,
[among
...
other
implies.
period for
that “must state:
Enoch
once the
motion”
reasonably ex-
granting
things]
a
for
un-
the facts relied
motion
extension
time
Tex.R.App.
passed,
party
plain
no
the need for an extension.”
der Rule
a
can
10.5(b)(1)(C).
rules,
26.3,
jurisdic-
our
longer
appellate
Like
new
invoke the
court’s
applies
the rule that
plain
tion.
It also
alter
for
the
does not
the time
41(a)(2),
case,
that
the
beyond
period
au-
Rule
mandates
perfecting
appeal
the
this
41(a).
compels
timely; consequently, it
by
appeal
Nor
our hold-
thorized
does
be
finality
judgments,
reached
this
the result the court
undermine
enlarged by
dispensed
Supreme
by
with or
5.
Texas
cited
cannot be
Court cases
reason.”).
distinguishable
disapprove
any
this case. In
We
Miller
dissenters are
from
for
Massey,
appellant
Miller,
cost
(Tex.App.
Davies v.
mailed his
848 S.W.2d
— Texarkana
due,
day
the bond was
Parlor,
bond a
before was
writ),
Sharky's
no
El
Billiard
Paso
eight days
received
late.
(Tex.App.
Amparan,
apparent from the In Linwood cases cites. Prairie, party’s we held that Grand reached decision The court bona to invoke the unambig plain and required by applying the preserve will its 41(a)(2). language of Rule uous apparent opinions clearly these What R.App. (2); Massey, Davies defect, procedural which rendered Co. Glidden *5 party’s appeal only effort at a bona fide Co., 291 & Sur. 155 v. Aetna Cas. Concomitantly, attempt, was correctable. (1956); also see Miller S.W.2d obligation hopeful appellant had Miller, (Tex.App. —Tex But how correct defect. would one cor- writ); Sharky’s no Paso arkana El untimeliness? rect One can’t. Neither Parlor, Amparan, Inc. v. Billiard remotely signals these cases a retreat from (Tex.App Paso writ S.W.2d . —El principle that a must denied). to invoke the court’s opinion dispenses with Court’s majority responds my criticism 41(a)(2)’s rule requirements, and amends claiming that its decision “does not indefinite- by judicial opinion fiat. is con The Court’s ly the time in which Dept. trary precedent. to its own See State perfect parties supposed- appeal” because Transportation v. Highways & Public ly specified in “will still know within the time (Tex. 235, 241 Payne, opponents whether will 1992)( by opin do not revise our “[W]e appeal.” seek to Co., ion.”); Mfg. Alvarado v. Farah My colleagues they demonstrate that (Tex.1992)(same). 911, 915 I would they do not what The “indef- understand do. deny the Because the Court decides writ1. nothing initeness” has to do with not know- otherwise, I dissent. whether an will be forty-five days. every- thirty or It knowing
thing to do Court simply “imply”
will a condition never prefers.
occurred to reach the result filings “imply”
When next will If
were never made? the clear Court,
its own rules does not constrain “indefinite,” If what this is not
then
will?
Baker,
Verburgt’s companion cases.
also
also dissent to
1. I
dissent
Verburgt’s
3. Like Justice
Co.,
companion
cases. See Harlan v.
Howe
Boyd
State
Indem.
v. American
(Tex.1997);
Bank,
Bank,
(Tex.1997);