Court of Appeals of Texas, Eighth District, El Paso
ALEJANDRO HERNANDEZ AND THE FREEDOM INDEED FOUNDATION, INC., Appellants,
CONSTABLE R.A. SOMMERS, PRECINCT #7, U.S. BANK, N.A. ALBERTO ENRIQUE HERNANDEZ, REYNALDO AARON MORALES AND VICTOR VASQUEZ, Appellees.
from County Court at Law No. 7 of El Paso County, Texas (TC #
McClure, C.J., Rodriguez, and Palafox, JJ.
T. RODRIGUEZ, Justice
appeal is before the Court to determine whether it should be
dismissed for want of jurisdiction. The jurisdictional issues
are: (1) whether the trial court entered a final judgment or
appealable interlocutory orders, and if so, (2) whether
Appellants timely filed their notice of appeal.
filed suit against Constable R.A. Sommers Precinct #7, U.S.
Bank, N.A., Alberto Enrique Hernandez, Reynaldo Aaron Morales
and Victor Vasquez. On February 9, 2018, the trial court
entered an order granting a plea to the jurisdiction filed by
Constable R.A. Sommers and granting a motion filed by Alberto
Enrique Hernandez and Reynaldo Aaron Morales to expunge the
notice of lis pendens filed on April 20, 2017.
well settled that appellate courts have jurisdiction over
final judgments and interlocutory orders made appealable by
statute. Lehmann v. Har-Con Corporation, 39 S.W.3d
191, 195 (Tex. 2001); Tex.Civ.Prac.&Rem.Code Ann. §
51.014 (West Supp. 2017)(authorizing appeals from certain
interlocutory orders). A judgment is final if it actually
disposes of all claims and parties then before the court,
regardless of its language, or it states with unmistakable
clarity that it is a final judgment as to all claims and all
parties. Bison Building Materials, Ltd. v. Aldridge,
422 S.W.3d 582, 585 (Tex. 2012).
undisputed that the February 9, 2018 order does not dispose
of all parties and claims. Consequently, we lack jurisdiction
of the attempted appeal from the portion of the order
granting the motion filed by Alberto Enrique Hernandez and
Reynaldo Aaron Morales to expunge the notice of lis
pendens filed on April 20, 2017. We dismiss the appeal
as to Alberto Enrique Hernandez and Reynaldo Aaron Morales.
Further, Appellants do not assert that the trial court has
entered any appealable orders with regard to Appellees U.S.
Bank, N.A. and Victor Vasquez. Accordingly, we dismiss the
appeal as to U.S. Bank, N.A. and Victor Vasquez.
order granting Constable Sommers' plea to the
jurisdiction is an appealable interlocutory order.
See Tex.Civ.Prac.&Rem.Code Ann. §
51.014(a)(8). An appeal from an interlocutory order is
accelerated. See Tex.R.App.P. 28.1(a). In an
accelerated appeal, the notice of appeal must be filed within
twenty days after the judgment or order is signed.
Tex.R.App.P. 26.1(b). The trial court signed the
interlocutory order on February 9, 2018. Consequently,
Appellants' notice of accelerated appeal was due to be
filed no later than March 1, 2018. Appellants filed their
notice of appeal on March 16, 2018, fifteen days late. The
Rules of Appellate Procedure authorize an appellate court to
extend the time to file the notice of appeal if the appellant
files the notice of appeal within fifteen days after the
deadline and the appellant files a motion for extension of
time pursuant to Rule 10.5(b). Tex.R.App.P. 26.3. An
extension motion filed pursuant to Rule 10.5 must include
"the facts relied on to reasonably explain the need for
an extension." See Tex.R.App.P. 10.5(b)(1)(C).
complied with Rule 26.3 by filing both their notice of appeal
and an extension motion. The only remaining question is
whether Appellants' extension motion provides a
reasonable explanation for their failure to timely file the
notice of accelerated appeal. See Tex.R.App.P.
10.5(b)(1)(C). The Texas Supreme Court has made clear that in
this context a reasonable explanation means "any
plausible statement of circumstances indicating that failure
to file within the [required] period was not deliberate or
intentional, but was the result of inadvertence, mistake or
mischance." Hone v. Hanafin, 104 S.W.3d 884,
886 (Tex. 2003), quoting Meshwert v. Meshwert, 549
S.W.2d 383, 384 (Tex. 1977); see Garcia v. Kastner Farms,
Inc., 774 S.W.3d 668, 669 (Tex. 1989). Absent a finding
that an appellant's conduct was deliberate or
intentional, a court of appeals should ordinarily accept the
appellant's explanations as reasonable. Hone,
104 S.W.3d at 887. Appellants state in their extension motion
that they did not file their notice of appeal by the deadline
because they did not know the trial court had entered the
order until March 15, 2018. This explanation does not
indicate a deliberate or intentional failure to file the
notice of appeal. Accordingly, we grant Appellants'
motion and extend the deadline to file the notice of appeal
to March 16, 2018. We conclude that Appellants timely filed
their notice of appeal from the order granting Sommers'
plea to the jurisdiction.
we have dismissed the appeal as to Appellees U.S. Bank, N.A.,
Alberto Enrique Hernandez, Reynaldo Aaron Morales, and Victor
Vasquez, the Clerk of the Court is directed to change the
style of the case to Alejandro Hernandez and The Freedom
Indeed Foundation, Inc. v. Constable R.A. Sommers Precinct
#7. The parties shall use this style on all documents
filed in this case, ...