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Hernandez v. Sommers

Court of Appeals of Texas, Eighth District, El Paso

April 25, 2018

ALEJANDRO HERNANDEZ AND THE FREEDOM INDEED FOUNDATION, INC., Appellants,
v.
CONSTABLE R.A. SOMMERS, PRECINCT #7, U.S. BANK, N.A. ALBERTO ENRIQUE HERNANDEZ, REYNALDO AARON MORALES AND VICTOR VASQUEZ, Appellees.

          Appeal from County Court at Law No. 7 of El Paso County, Texas (TC # 2017DCV0816)

          Before McClure, C.J., Rodriguez, and Palafox, JJ.

          MEMORANDUM OPINION

          YVONNE T. RODRIGUEZ, Justice

         This 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.

         Appellant 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.

         It is 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).

         It is 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.

         The 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).

         Appellants 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.

         Because 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, ...


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