## NO. 12

- 22

- 00218 -CV

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

WOLFGANG P. DEMINO , APPELLANT

V.

FELIPE N. GOMEZ , APPELLEE §

§

§ APPEAL F ROM THE 114TH

JUDICIAL DISTRICT COURT

SMITH COUNTY, TEXAS

MEMORANDUM OPINION This is an appeal from the t r ial court ’s dismissal for want of prosecution. 1 We affirm.

B ACKGROUND This dispute grew out of an attempt to invalidate restrictions on abortions in Texas

. Alan
B raid, M.D., announced in an op

- ed piece in the Washi ngton Post t hat he perfo rmed an abo rtion
in violation of Texas Law. Braid ’ s apparent intent was to encourage a lawsuit against him that
would result in the invalidation of the Texa s law as unc onstitutional. Appellee , Felipe N.
Gomez , su ed Braid in Bexar County , Tex a s where Braid resided. 2 However, Gomez publicly stated that he was really a “ pro
- choice plaintiff ” and r ather than seeking to punish Braid, he sued

1 Both parties to this appeal are acting pro se.

2 This Cour t is aware that Gomez filed for ba nkruptcy. When a petition in bankruptc y is filed, “ it operates as an automatic stay agai nst the commencement or continuation of any judicial, administrative, or other proceeding

a gainst the debtor. ” Budzyn v. Citibank, NA , No. 01

- 08

- 00211

- CV, 2010 WL 2044628, at *1 (Tex. App.

— Houston [1st Dist .] May 19, 2010 ) (order) (per curia m) ; 11 U.S.C. § 362(a) . Actions taken in violation of the automatic stay, including judgments or other court actions, are voided. Budzyn , 2010 WL 2044628, at *1

. Because an appeal is a continuation of judicial action, it is automatically stayed if “against th e debtor.” Id

. But if the debtor was the plaintiff in the court below, the stay does not ap ply

. Id

. Here, Gomez is the debtor and h e was the plaintiff in the court below. Accordingly, the stay does not apply to t his case. See id .; see als o In re Mid

- City Parking, Inc. , 332 B.R. 798, 807 ( Bankr. N.D. Ill. 2005) (“ To the extent that the claim was not ‘ against ’ the debtor at its incept ion because the debtor occupied a plaintiff ’ s position, its further prosecution is not stayed pursuant to § 3 62(a)(1) ”)

.2 in hope of getting th e Texas law declared unconstitutional. Appe lla nt , Wolfgang P. DeMino , saw Gomez ’ s s ui t as an attempt to procur e the overtu rn of the Texas legislation through collusive litigation and brought a n adversarial proceeding against Braid. DeMino also intervened in
another case a gainst Braid. During the litigation , he refer red to Gomez as a “ dis b arred ” Illinois lawyer and described his lawsuit against Braid as “ collusive. ” Gomez subsequently sued
DeMino al leging that DeMino ’ s references to him as “ disbarred ” an d to his lawsuit again st Braid

as “ collusive ” were de famatory

. The peculiar procedura l history of this case is as follows:

1. On May 4, 2022, Gomez sued DeMino in Smith Coun ty seeking $100,000.00 on his defamation claim

.
2. On May 5 , DeMino files an answ e r an d counterclaim for damages for a smear campaign waged b y Gomez.

3. On May 6 , DeMino f ile d his first motion for partial summary judgment.

4. On June 1 , Gomez respon ded to the motion for partial summary judgment.

5. On June 1 4 , an o rder issued setting a Ju ne 24 he aring on DeMino ’ s motion and gave notice of the court ’ s intent to dismiss under Ru l e 165a if a party seeking affirmative relie f fail ed to appear.

6. On June 24, t he trial court dismissed the cas e for want of prosecution after making the following findin g s :

a. B oth parties rec e i ved notice of the setting of the summary judgment hearing and of the court ’ s intent t o dismiss the case for want of prosecution should the parties fail t o appear; b. B oth parties had notice of the hearing but were relu ctant to appear be cause of their personal confl icts with one another;

c. A t 8:00 the case was called and nei t her party was present; d. N o continuance had been filed as of 11:00 a.m.

7. On June 27, De M ino file d a second motion f or summary judgment on all of Gomez ’ s defamation claims

.
8. On J ul y 25, DeMino file d an “ Omnibus Post Judg ment Motion and Request to Incorporate MSJ Rul ings into Final Judgment of Dismissal. ” DeMino state d that “ this is not a motion f or new trial, nor a motio n to vacate the DWOP in toto , but a motion to modify, corr ect , or reform the judgment. ” He requested that the court convert the di smis s al, “ which i s currently one without prejudice, to a judgment dismissing Plaintiff ’ s [Gomez ’ s ] defa mation claims with prejud ice based on the C ourt ’ s [granting] of the Defen dant ’ s [po st

- judgment] motions for summary judgment, which are hereby incorporated by r e ference. ”

9. On Au gust 2 at 1:51 p.m. , the t r ial court construe d DeMino ’ s post

- dismissal motions as motions to reinstate the case an d set the same for h earing on September 9 at 11:00 a .m.

10. On Au gust 3 at 9:39 a.m. DeMino file d a notice of appeal from the trial court ’ s Ju ne 24 d ismiss al for wa nt of prosecution.3 11. On August 3 at 6:1 4 p.m. , Gomez file d a notice of non

- suit notifying the court that his di smissed claims had bee n re
- fil ed in Chic ago.

12. On September 2, DeMino file d a Notice of Nonsuit and Disclaime r as t o Rule 165a Motion to Reinstate in which he disclaim ed any int ent to pursue his counter claims or to seek reinstat e ment under Rule 165a.

13. There is no record of a ny September 9 hearing set by the court ’ s August 3 order.

J URISDICTION Whether to dismi ss a case for want of prosecution “ rests within the sound discretion of
the trial court and can be disturbed on review only if the trial court ’ s decision amounted to a
clear abus e of discretion. ” Palmer v. Office of the Atty. Gen. , 656 S.W.3 d 640, 644 (Tex

. App.–
El Paso 2022, no pet. ). A trial court abuses its discretion when it acts in an arbitrary and unreasonable manner, or when it acts without reference to any guiding rules or principles. Downer v. Aquamar ine Operat or s, Inc. , 701 S.W.2d 238, 241-42 (T ex . 1985). A trial court may dismiss for want of prosecution for “ failure of any party seeking
affirmative relief to appear for any hearing or trial of which the party had notic e. T EX

. R. C IV

. P.
165 a(1). T o obtain further action by the trial court, a verified motion to reinstate is the only remedy available to a party when the trial court dismisses for want of prosecution. Young v. DiFerrante , 553 S.W.3d 125, 128 (Tex. App. –Houston [14 th Dist .] 2018 , pet. denied) ; see Gilbert v. Huber, Hunt, Nicho ls, Inc. , 671 S.W.2d 869, 870 (Tex. 1984) (per curiam) ; Sierra
Club v. Tex Comm’ n on Envtl. Quality , 188 S.W.3d 220, 222 (Tex. App.–Austin 2005, no pet.). Although a ver ified motio n to reinstate is the venue to obtain further proceedings in the trial court, su ch a m otion is not a prerequis ite to app eal for want of prosecution. Pa lmer , 656
S.W. 3d at 645; Maida v. Fire Ins. Exch. , 990 S.W.2d 836, 838 n.1 (Tex. App. –F ort Worth 1999,

no pet.). A motion t o reinstate will extend the time for f iling a notice of appeal to within ninety days after th e judgment is signed. T EX

. R. A PP

. P . 26 .1 (a)(3). If no motion to reinstate is filed
with the clerk of the trial court within thirty days after the order of dismis sal is signed or within the period by Rule of Civil Procedure 306a, notice of appeal must be filed within thirty days after the order of dismissal is signed. T EX

. R. A PP

. P. 26.1. R ule 26.3 provides however, that the appell ate court m ay extend the time to file the notice of appeal if within fifteen days after the deadline for filing the notice of appeal, the party files in the trial court the notice of appeal and
f iles in the appellat e court a motion explaining the facts rel ied on to r eason a bly explain the need4 for an extension. T EX

. R. A PP

. P. 26.3. A motion for an extension of time is implied when an appellant, acting in good faith, files a notice of appeal beyond the thirty

- day limit allowed by
R

ule 26.1, but within the fifteen

- day extension period provided by R ule 26.3. See V erburg t v.
Dorner , 959 S.W.2d 615, 617 (Tex 1997) ; City of Dallas v. Hillis , 308 S.W.3d 526, 529 (Tex. App.– Dallas 2010, pet. denied). Any conduct short of deliberate or intentional noncompliance qualifi es as a reasonable exp lanation. See Hone v. Hanafin , 104 S.W.3d 884, 886 –87 (Tex. 2003) (per curiam).
Ana lysis
DeMino filed no verified motion for reinstatement within thirty days of the signing of the
dismissal order. He filed his notice of appeal beyond th e thirty

- day limit for filing such notice but withing the fifteen -day period d uring which the appellat e court may extend the time to file an appeal. There is no indication that DeMino was not actin g in good faith, and, therefore, a motion
for an extens ion of time to file a notice of appeal is implied in his not ice of appeal. See Verburgt , 959 S. W.2d 617. His notice of appeal shows that he mistakenly believed that his post

dismissal motion for summary judgment filed three days after the sig ning of the ord e r of dismissal served to extend the time for perf ecting an appeal, because it was a post -judgment
motion see king a substantive change in the judgment of the trial court. In his notice of appeal,
DeMino state s as follows:

A ppellant – Defendant DeMino ti m ely filed two post

- judgment motions within 30 days of the date of the June 24 dismissal order , thereby extending the plenary power and post

- judgment deadlines.

This show s that Appellant ’ s failure to file within thirty days of the order was not deliber ate, but
the result of “ inadvertence, mistake , or mischance .” Hone , 104 S.W.3d 886. This satisfies Rule 10.3(b)’s requirements that an appellant “ reasonably explain its need for an extension .” Id. ; T EX

. R. A PP

. P. 10.5(b). Therefore, we conclude this Court has jurisdiction.

A BUSE OF D ISC RETION In four issus, D eMino maintains that the trial court abused its di scr etion when it failed to modify its dismissal order for want of prosecution. He insists the trial court reversibl y erred in not granting his post -d ismissal m otion for summary judgment on the merits. He maintains that the summary judgment evidence supporting his post dismissal motion establishes that the5 statements Gomez claims are defamatory are substantially tru e o r judicially privileg ed.
DeMino ’s motion for partial summary judgment was set for hearing on June 24 with notice of
the trial court ’ s intent to dismiss under Rule 165a if a party seeking affirmative relief failed to appear. The trial fo und that both part ies had notice and both failed to appear. DeMino filed no verified motion to rein state as require by Rule 165a. Absent the trial
court’ s grant of such a motion, the trial court lacked the power to act on DeMino ’ s post dismissal motion for summary judgmen t. See Young , 553 S.W.3d 125, 128 . The record reveals no reasonable explanation for DeMino ’ s failure to appear except his hostile relationship with
Gomez

. Accordingly, we conclude t hat the trial court did not abuse its discretion in dismissing
this case for want of pro secution. We over rule DeMino ’ s four issues.

D ISPOSITION
We affirm the trial court ’ s judgment dismissing the underlying case for want of prosecution.

B ILL B ASS Jus tice
Opinion delivered July 12, 2023. Panel consisted of Hoyle, J., and Neeley, J., Bass, Retired J., Twelf th Court of Appeals, sit ting by assignment.

## COU RT OF APPEALS

TWELFTH COUR T OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JULY 12, 2023

NO. 12-22-00218- CV

WOLFGANG P. DEMINO , Appellant V. FELIPE N. GOMEZ , Appe llee

Ap peal from the 114th District Court
of Smith County, Texas (Tr.Ct.No. 22-0920-B)

T HIS C AUSE came to be heard on the appell a te record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment. It is therefore ORDERED, ADJU DGED and DECREED that the judgment
of the cou r t bel ow be in all things affirmed , and t h at this decision be certified to the court
below for observance. All costs expended in this cause are assessed agains t the Appell ant,
WOLFGANG P. DEMINO

. B ill Bass , Jus tice

. Panel consi sted of Hoyle, J., an d Neeley, J. and Bass, Retired J., T welfth Court of Appeals, sitting by assignment.