## COURT OF APPEALS

CATHERINE STONE

CHIEF JUSTICE

KAREN ANGELINI

SANDEE BRYAN MARION

MARIALYN BARNARD

REBECA C. MARTINEZ

PATRICIA O. ALVAREZ

LUZ ELENA D. CHAPA

JUSTICES FOURTH COURT OF APPE ALS DISTRICT

CADENA

- REEVES JUSTICE CENTE R

300 DOLOROSA, SU ITE 3200

SAN ANTONIO, TEXAS 7 8205

- 3037

WWW.4THCOA.COURTS.ST ATE.TX.US KEITH E. HOTTLE

CLERK OF COURT

TELEPHONE

(210) 335

- 2635

FACSIMILE NO.

(210) 335

- 2762

April 2, 2013

Barry G. Johnson

David S. Kohm & Associates

1414 W. Randol Mill Rd., Ste . 118

Arlington, TX 76012 Carrie L. Garcia

Law Office of M. Nathan Barbera

P.O. Box 941069

Plano, TX 75094

RE: Court of Appeals Number: 04

- 12

- 00480

- CV

Trial Court Case Number: 2010

- 50194

- 367

Style: Greg Chambers and Trina Bradley

v.

Eusebio Maldona do

Enclosed please find the order which the Honorable Court of Appeals has

issued in reference to the above styled and numbered cause.

If you should have any questions, please do not hesitate to contact me.

Very truly yours,

KEITH E. HOTTLE, CLERK

_____________________________ Elizabeth Montoya

Deputy Clerk, Ext. 5 3857

cc: Sherri Adelstein

# Fourth Court of Appeals

San Antonio, Texas

April 2, 2013

N o. 04

- 12

- 00480

- CV

Greg CHAMBERS and Trina Bradley,

Appellant s

v.

Eusebio MALDONADO

, Appellee

From the 367th District Court, Denton County, Texas

Trial Court No. 2010

- 50194

- 367

Jonathan Mark Bailey, Judge Presiding



### O R D E R

The trial court signed a dismissal order on April 18, 2012. On Ma y 14, 2012, appellants

filed an unverified motion to reinstate . Although a verified motion to reinstate extends the time

for perfecting an appeal, an unverified motion to reinstate d oes not extend the deadline.

McConnell v. May , 800 S.W.2d 194, 194 (Tex. 1990) (per curiam); Butts v. Capitol City Nur s ing

Home, Inc. , 705 S.W.2d 696, 697 (Tex. 1986) (per curiam); In re Valliance Bank , No. 02

- 12

- 00255

- C V, 2012 WL 5512455, at *2 (Tex. App.

— Fort Worth Nov. 15, 2012, orig. proceeding).

In Guest v. Dixon , 195 S.W.3d 687, 688 (Tex. 2006), the Texas Supreme Court acknowledged its

holdings in McConnell and Butts , but asserted “Since those cases we have repeate dly stressed

that procedural rules should be construed and applied so that the right of appeal is not

unnecessarily lost to technicalities.” “Although the supreme court admonished in Guest and has

continue to stress that courts should strive to reach the merits of cases when reasonably possible

and that litigants’ rights (whether of appeal or of a day in court) should not be lost based upon

procedural technicalities, that line of cases has not overruled McConnell or Butts , and we remain

bound by those deci sions.” In re Valliance Bank , 2012 WL 5512455, at *4.

Because the appellants’ unverified motion to reinstate did not extend the deadline for

perfecting the appeal, the notice of appeal was due to be filed on May 18, 2012. See T EX

. R.

A PP

. P. 26.1(a). Appellants did not file their notice of appeal until July 17, 2012. On July 25,

2012, appellants filed a second motion to reinstate

, requesting the trial court to treat its prior

motion to reinstate as a motion for new trial. This same argument was made to the intermediate

appellate court in Butts , 700 S.W.2d 628, 630 (Tex. App.

— Austin 1985), writ ref’d n.r.e. , 705

S.W.2d 696 (Tex. 1986). That court rejected the argument, asserting, “Without treating every

motion to reinstate as a motion for new trial, i t is difficult to see how the motion in questioncould be other than a motion to reinstate.” Id . In refusing the application for writ of error, the

Texas Supreme Court agreed that “no proper motion was filed with the court” to extend the

deadline for per fecting the appeal. Butts , 705 S.W.2d at 697.

A motion for extension of time is necessarily implied when an appellant, acting in good

faith, files a notice of appeal beyond the time allowed by Rule 26.1 but within the fifteen

- day

grace period provided b y Rule 26.3 for filing a motion for extension of time. See Verburgt v.

Dorner , 959 S.W.2d 615, 617 (Tex. 1997) (construing the predecessor to Rule 26). But “once

the period for granting a motion for extension of time under Rule [26.3] has passed, a party can no longer invoke the appellate court’s jurisdiction.” Id

.

It is therefore ORDERED that appellant show cause in writing within fifteen days from

the date of this order why this appeal should not be dismissed for lack of jurisdiction.

It is so ORDERED on April 2, 2013.

PER CURIAM

ATTESTED TO:

_________ ___________________________

K eith E. Hottle

Clerk of CourtMINUTES

Court of Appeals

Fourth Cou rt of Appeals District

San Antonio, Texas

April 2, 2013

N o. 04

- 12

- 00480

- CV

Greg CHAMBERS and Trina Bradley,

Appellant s

v.

Eusebio MALDONADO

, Appellee

From the 367th District Court, Denton County, Texas

Trial Court No. 2010

- 50194

- 367

Jonathan Mark Bailey, Judge Presiding



### O R D E R

The trial court signed a dismissal order on April 18, 2012. On Ma y 14, 2012, appellants

filed an unverified motion to reinstate . Although a verified motion to reinstate extends the time

for perfecting an appeal, an unverified motion to reinstate d oes not extend the deadline.

McConnell v. May , 800 S.W.2d 194, 194 (Tex. 1990) (per curiam); Butts v. Capitol City Nur s ing

Home, Inc. , 705 S.W.2d 696, 697 (Tex. 1986) (per curiam); In re Valliance Bank , No. 02

- 12

- 00255

- C V, 2012 WL 5512455, at *2 (Tex. App.

— Fort Worth Nov. 15, 2012, orig. proceeding).

In Guest v. Dixon , 195 S.W.3d 687, 688 (Tex. 2006), the Texas Supreme Court acknowledged its

holdings in McConnell and Butts , but asserted “Since those cases we have repeate dly stressed

that procedural rules should be construed and applied so that the right of appeal is not

unnecessarily lost to technicalities.” “Although the supreme court admonished in Guest and has

continue to stress that courts should strive to reach the merits of cases when reasonably possible

and that litigants’ rights (whether of appeal or of a day in court) should not be lost based upon

procedural technicalities, that line of cases has not overruled McConnell or Butts , and we remain

bound by those deci sions.” In re Valliance Bank , 2012 WL 5512455, at *4.

Because the appellants’ unverified motion to reinstate did not extend the deadline for

perfecting the appeal, the notice of appeal was due to be filed on May 18, 2012. See T EX

. R.

A PP

. P. 26.1(a). Appellants did not file their notice of appeal until July 17, 2012. On July 25,

2012, appellants filed a second motion to reinstate

, requesting the trial court to treat its prior

motion to reinstate as a motion for new trial. This same argument was made to the intermediate

appellate court in Butts , 700 S.W.2d 628, 630 (Tex. App.

— Austin 1985), writ ref’d n.r.e. , 705

S.W.2d 696 (Tex. 1986). That court rejected the argument, asserting, “Without treating every

motion to reinstate as a motion for new trial, i t is difficult to see how the motion in question

could be other than a motion to reinstate.” Id . In refusing the application for writ of error, the

Texas Supreme Court agreed that “no proper motion was filed with the court” to extend the

deadline for per fecting the appeal. Butts , 705 S.W.2d at 697.A motion for extension of time is necessarily implied when an appellant, acting in good

faith, files a notice of appeal beyond the time allowed by Rule 26.1 but within the fifteen

- day

grace period provided b y Rule 26.3 for filing a motion for extension of time. See Verburgt v.

Dorner , 959 S.W.2d 615, 617 (Tex. 1997) (construing the predecessor to Rule 26). But “once

the period for granting a motion for extension of time under Rule [26.3] has passed, a party can no longer invoke the appellate court’s jurisdiction.” Id

.

It is therefore ORDERED that appellant show cause in writing within fifteen days from

the date of this order why this appeal should not be dismissed for lack of jurisdiction.

It is so ORDERED on April 2, 2013.

PER CURIAM

ATTESTED TO: /s/ Keith E. Hottle

Keith E. Hottle

Clerk of Court

Entered this 2 nd day of April, 2013 VOL____PAGE____