David A. WHITE, Appellant, v. BAKER & BOTTS, Appellee.
No. 01-92-00152-CV
Court of Appeals of Texas, Houston (1st Dist.)
July 2, 1992
833 S.W.2d 327
Dara L. Miles, Houston, for appellee.
Before SAM BASS, MIRABAL and O‘CONNOR, JJ.
OPINION ON MOTION FOR REHEARING
O‘CONNOR, Justice.
We withdraw our earlier opinion and issue this one in its stead. Baker & Botts,
This case involves thе deadline to perfect an appeal after an appellant is denied the right to appeal as an indigent. The question is: What is the deadline for the appellant to file an appeal bond after the court of appeals denies him leave to file a mandamus to challenge the trial court‘s denial of status as an indigent? There are two possible avenues to resolve this issue. First, we could interpret
The dissent believes we should interpret rulе 41(a)(2) to give the appellant relief. The majority disagrees with the dissent that a court of appeals has the authority to interpret a rule of procedure to enlarge jurisdiction. The majority believes we are required to narrowly construe our jurisdiction; the dissent believes we should liberally construe our jurisdiction. As to the second option, interpreting the affidavit as a defective instrument that may be amended, the majority believes that we may not apply Grand Prairie because there is a specific rule of procedure that governs the filing of the appeal bond after the trial court sustains the contest. Either solution requires action by the supreme court.
On September 5, 1991, the trial court signed a judgment dismissing White‘s suit against Baker & Botts. Before the trial court signed the judgment, the appellant filed a motion for new trial. According to
The appellant timely filed his affidavit of inability to give cost bond on October 24, 1991.
When the trial court sustains a contest to the affidavit of indigency, rule 41(a)(2) gives the appellant an additional 10 days within which to file a bond. With this extеnsion, the appellant was required to file his bond on or before December 2, 1991.2 Because the appellant had 90 days from the date the judgment was signed, the appellant had until December 4, 1991, to perfect his appeal.
Rule 41(a)(2), which gives the appеllant a 10-day extension of time after the trial court sustains the contest to file the appeal bond, provides:
If a contest to an affidavit in lieu of bond is sustained, the time for filing the bond is extended until ten days after the contest is sustained unless the trial court finds and recites that the affidavit is not filed in good faith.
Rule 41(a)(2) extends the deadline to perfect an appeal by 10 days when the trial court refuses to permit a party to appeal as an indigent; it makes no mention of a similar extension of time if the appellate court denies the party leave to file a petition for mandamus to review the trial court‘s order.
Nothing in rule 41(a)(2) or in any case law that we could find, permits us tо interpret the rule to give the appellant an additional 10 days from the date the motion for rehearing was overruled by the Fourteenth Court of Appeals.6 As an intermediate court, we do not have the authority to construe a rule of procedure liberally to enlarge our jurisdiction.
The appellant argues that it is unreasonable to require an indigent to file a petition for mandamus and obtain a ruling by the appellate court within 10 days of the date the trial court ruled he was not eligible to appeal аs an indigent.7 The appellant argues that such a requirement would effectively eliminate the review by manda-
The dissent argues that we should interpret rule 41(a)(2) to apply to the appellate courts, and we should hold that the appellant has an additional 10 days from the date the appellate court makes its final order denying leave to file the mаndamus. The dissent maintains that we are compelled to give a liberal construction of the rules. By the very terms of rule 41(a)(2), however, it applies only to the court that sustains the contest, not one that reviews the ruling on the contest.
In response, the dissent argues that the contest to the affidavit of indigence was not finally sustained until the appеllate courts had an opportunity to review and rule on the mandamus. The idea that the trial court‘s judgment or order is not final until a motion for leave to file a mandamus is overruled is a novel one, not supported by law. In fact, this Court has jurisdiction over this appeal only because the judgment in this case is final. See
In a civil case in which the judgmеnt or amount in controversy exceeds $100, exclusive of interest and costs, a person may take an appeal ... to the court of appeals from a final judgment of the district or county court.
Unless there is a specific exception created by statute, a final judgment is a necessary prerequisite to invoke appellate jurisdiction. Hinde v. Hinde, 701 S.W.2d 637, 639 (Tex.1985); Pelt v. State Bd. of Ins., 802 S.W.2d 822, 826 (Tex. App.--Austin 1991, no writ). Thus, the judgment and all orders signed by the trial court in the case below are final. They became final on November 30, 1991, 30 days after the trial court overruled the motion for new trial on October 31, 1991. Clark & Co. v. Giles, 639 S.W.2d 449, 450 (Tex.1982) (judgment became final when the trial court lost power to change it).
The dissent‘s argument that the application for mandamus filed in the Fourteеnth Court of Appeals somehow deprived the trial court‘s order of finality is even farther off the mark than if she argued the appeal suspended the finality of the judgment. An application for mandamus is not an ordinary appeal; it is an original proceeding, a new cause of action. The finality of the trial court‘s ruling in one case сannot depend on whether the appellant files an original action to challenge it.9
There is yet another reason, as an intermediate court, that we should refrain from interpreting rule 41(a)(2) to extend the deadline to perfect an appeal 10 days from the date the court of appeals denies leave to file a mandamus. There is no rule or case law that provides a deadline for filing a mandamus to challenge the trial court‘s
We urge the Texas Supreme Court to resolve this matter by rule amendment or by opinion in this case. The courts and future litigants need to know how to compute the appellant‘s time limit to file the appeal bond after the appellant has been denied mаndamus to review the trial court‘s order denying him permission to appeal as an indigent.
Until the supreme court resolves this issue, an appellant who attempts to challenge by mandamus the trial court‘s order denying him leave to appeal as an indigent, should ask the court of appeals to enter a temporary order suspending thе time to file the appeal bond under rule 41(a)(2). Such an appellant should be prepared to file the appeal bond within the 10 days permitted by rule 41(a)(2), as suspended by the court of appeals.
We hold that the appellant did not file a timely appeal bond.
MIRABAL, Justice, dissenting.
I dissent.
It is a rule of appellate courts to give each litigant every opportunity to be heard upon the merits of the case, and we will not deny such right to any litigant unless compelled to do so. Allen v. United Supermarkets, Inc., 467 S.W.2d 616, 621 (Tex.Civ.App.-Amarillo 1971, no writ). The object of the rules of procedure is “to obtain a just, fair, equitable and impartial adjudication of the rights of litigants.” Smirl v. Globe Laboratories, 144 Tex. 41, 188 S.W.2d 676, 678 (1945);
Rule 41(a)(2) provides, in part:
If a contest to an affidavit in lieu of bond is sustained, the time for filing the bond is extended until ten days after the contest is sustained....
The majority construes this rule to mean that the 10-day extension runs from the date the trial court sustains the contest. I disagree with the majority‘s narrow reading of this rule.
When a trial court sustains a contest to аn affidavit of inability to pay costs, the appellant‘s remedy is to seek a review of the trial court‘s order by mandamus proceedings in the court of appeals. Allred v. Lowry, 597 S.W.2d 353, 354 n. 2 (Tex.1980); Underwood v. Cartwright, 795 S.W.2d 34, 35 (Tex.App.-Houston [1st Dist.] 1990, orig. proceeding). To hold that an appellant must file an appeal bond within 10 days after the contest to the pauper‘s affidavit is sustained by the trial court, even though mandamus proceedings are pending to obtain a review of the trial court‘s ruling, would make the right to review by mandamus meaningless. See Stein v. Frank, 575 S.W.2d 399, 400 (Tex.App.-Dallas 1978, orig. proceeding) (once appellant filed her appeal bond, she abandoned her affidavit of inability to pay costs.).
Clearly, the Texas Supreme Court in Allred did not intend for an appellant tо be denied the opportunity to seek review of the trial court‘s order, yet the majority‘s strict reading of rule 41(a)(2) would effectively do just that. Under the majority‘s construction, if an appellant chooses to ask a higher court to review the trial court‘s order sustaining the contest to a pauper‘s affidavit, the appellant procеeds at its own risk. If the appellate court denies mandamus relief, and more than 25 days have passed since the trial court‘s order, the appellant has lost its right to appeal.
In my opinion, a contest to a pauper‘s affidavit is not finally sustained until the appellate courts have had an opportunity to review and rule on the appellant‘s challenge to the trial court‘s order. Accordingly, I would hold that the contest in this case was not finally sustained until January 23, 1992, when the Fourteenth Court of Appeals overruled the motion for rehearing.
I would grant appellant‘s motion for rehearing and overrule appellee‘s motion to dismiss this appeal.