Opinion issued July 26, 2012

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-11-00250-CV

———————————

PEGGY ANDERSON, Appellant

V.

PROGRESSIVE COUNTY MUTUAL INSURANCE COMPANY AND 

THOMAS DONAHUE, Appellees

On Appeal from the 152nd District Court

Harris County, Texas

Trial Court Case No. 2010-14716

MEMORANDUM OPINION

In this personal injury suit arising out of a car accident, Peggy Anderson 

sued Thomas Donahue and his insurer, Progressive County Mutual Insurance 
2

Company (“Progressive”), after Progressive denied Anderson’s claim for 

reimbursement for medical expenses and property damage. The trial court 

rendered summary judgment in favor of Progressive, and, after Anderson failed to 

comply with Donahue’s discovery requests, it struck her pleadings and granted 

Donahue’s motion to dismiss her claims. On appeal, Anderson challenges the trial 

court’s dismissal of her claims, arguing that she was not present at the dismissal 

hearing and that she did not receive notice of the dismissal until several months 

later.

We dismiss the appeal for want of jurisdiction.

Background

On May 15, 2009, Anderson and Donahue were involved in a car accident. 

Anderson filed a claim with Progressive, seeking recovery of medical expenses 

and vehicle-repair expenses. Progressive denied the claim and Anderson filed suit. 

Anderson sought $3,400 for damages to her vehicle and $75,000 for past medical 

expenses, pain and suffering, and mental anguish.

Donahue answered and sent Anderson requests for written discovery on 

March 29, 2010. Progressive also answered, filed a verified denial arguing that it 

was not liable in the capacity in which it was sued, and moved for summary 
3

judgment. The trial court granted an interlocutory summary judgment in favor of 

Progressive.1

After Anderson failed to respond to written discovery requests, Donahue 

moved to compel her responses. Anderson did not attend the hearing on this

motion. The trial court found that Anderson had “wholly failed to respond to 

[Donahue’s] Interrogatories, Requests for Production and Request for Disclosure” 

and had not shown good cause for this failure. The court granted Donahue’s 

motion to compel on May 21, 2010, and ordered Anderson to respond to 

Donahue’s discovery requests by June 21, 2010. The order also stated: “This 

order shall be served on Plaintiff by process server & mailed to Plaintiff by 

certified mail, return receipt & first class mail.” The order sent by certified mail 

was returned unclaimed. The record, however, contains a return from a process 

server, indicating that he personally served Anderson with the order at her 

residence on June 2, 2010.

Anderson failed to respond to Donahue’s written discovery requests by June 

21, 2010. Donahue then moved to dismiss Anderson’s claim against him, arguing 

that her discovery responses were “crucial” to his defense. Donahue argued:

 

1

The record does not include either Progressive’s summary judgment motion or any 

response by Anderson. Aside from stating that “[i]nsurance companies can be 

[s]ued in Texas,” Anderson does not challenge the summary judgment ruling in 

favor of Progressive on appeal.
4

The information that would have been discovered through Plaintiff’s 

discovery responses regards her claims of negligence against 

Defendant, and her claims of injuries and damages. Because Plaintiff 

did not respond to the discovery requests or comply with the court’s 

order . . . she should not be able to present evidence regarding her 

claim against Defendant. Because Plaintiff should not be able to 

present evidence regarding her claim against Defendant, Plaintiff 

cannot maintain her cause of action against Defendant. Because 

Plaintiff cannot maintain her cause of action against Defendant, her 

cause of action against Defendant should be dismissed for want of 

prosecution.

Donahue sent Anderson a notice of hearing, informing her that the trial court 

would consider his motion to dismiss at an oral hearing on July 16, 2010.

Anderson still had not responded to Donahue’s discovery requests by the 

July 16, 2010 hearing date, and, therefore, the trial court ordered:

Plaintiff has until August 30, 2010 to fully and completely answer the 

outstanding interrogatories, requests for production and request for 

disclosure, and if Plaintiff does not serve her full and complete 

answers to the outstanding interrogatories, requests for production and 

request for disclosure on Defendant’s attorney by August 30, 2010, 

then upon motion by Defendant, Plaintiff’s pleadings will be stricken 

and Plaintiff’s claim in this cause against Defendant may be 

dismissed.

This order also required Donahue’s counsel to mail a copy of the order to 

Anderson by certified and first-class mail.

On September 8, 2010, Donahue moved to strike Anderson’s pleadings and 

to dismiss the case. Donahue noted that Anderson had served a document entitled 

“Interrogatories Requested” within the required time period, but he argued that this 

document was not responsive to his interrogatories and did not constitute “full and 
5

complete answers” to his outstanding discovery requests, which also included 

requests for production and requests for disclosure to which Anderson had not 

responded. Donahue attached a copy of Anderson’s unsworn “Interrogatories 

Requested,” which stated, in its entirety:

To answer the Interrogatories by the Plaintiff Peggy Anderson; 

Thomas Donahue had Health problems, and at the time of the accident 

on May 15, 2009 Thomas Donahue was having health problem[s]. 

Which cause[d] me to suffer, which was witness[ed] by a witness. At 

the time of the accident he was staring at me like he was in another 

world after he hit my vehicle[.] I attempt[ed] to write down his 

information, he physically hit me with his vehicle[,] knocking me 

down[,] causing injury to me[,] and damaging my vehicle[.] I was in 

a daze[.] [W]hen my vision was clear[,] a witness was there to get his 

information off his vehicle and ask me to not to move[.] I was 

mentally afraid that he was going to run right over me, so I gradually 

got up [and] move[d] to the side of my Truck.

The officer took a report and had me to follow him where Thomas 

Donahue went and wrap[ped] his truck around a pole, to identif[y] his 

truck that left the scene of the accident. Progressive Mutual Insurance 

refused to pay properly for my injury, pain and suffering, and damage 

to my truck. I expect to be compensated for the complete [suit] which 

is on file.

The record contains a notice of hearing informing Anderson that the trial court 

would consider Donahue’s motion on September 17, 2010.

The day before the hearing, on September 16, 2010, Anderson filed a 

“Request for Hearing,” informing the trial court that there had been no attempt at 

alternative dispute resolution, that she had answered all of Donahue’s 

interrogatories, that she was requesting Donahue’s medical records, and that she 
6

was requesting settlement in the amount of $78,300 for past and future medical 

expenses, pain and suffering, and damages to her vehicle.2 She stated, “[It’s] time 

for settlement or request for Jury Trial.”

On September 20, 2010, the trial court signed an order striking Anderson’s 

pleadings and dismissing her claim against Donahue without prejudice. Anderson 

did not move for a new trial, move to reinstate the case, request findings of fact 

and conclusions of law, or timely file any other post-judgment motion. The record 

includes a printout from the Harris County District Clerk’s Office, addressed to 

Anderson, informing her that on September 20, 2010, the trial court signed an 

order striking her pleadings and dismissing the case on Donahue’s motion. This 

printout was not dated and did not indicate when it was mailed.

On January 21, 2011, Anderson filed the following “Motion of Pleading for 

Trial by Jury” with the trial court:

As of January 18, 2011 there’s been no Settlement or agreement to 

case no. 2010[-]14716[.] Plaintiff Peggy Anderson is filing for trial 

by Jury for Punitive Damages, to be awarded for compensation by the 

Defendants Progressive County Mutual Insurance, and Thomas 

Donahue on case no. 2010[-]14716, for [reckless] and willful act[s]

which cause[d] injury and pain and suffering[] to my back, knee, 

mouth, and ankle[, and] unmeasurable damages to my vehicle[.] 

[T]he settlement for case no. 2010[-]14716 is long overdue[.] Also to 

discuss the Dismissal Pleading by Defendants from Sept 20, 2010. 

Attached to this letter is included.

 

2

In her original petition, Anderson sought the recovery of $3,400 for damages to 

her vehicle; in her “Request for Hearing,” she sought the recovery of $3,300 for 

damages to her vehicle.
7

(Emphasis added.)

Anderson filed a “Motion for Appeal” in the trial court on March 29, 2011, 

more than six months after the trial court signed the dismissal order. She stated, 

“Plaintiff was not informed of oral hearings with Defendants Progressive County 

Mutual Insurance and Thomas Donahue or able to present our case[.] No 

correspondence at the beginning about a fee for having a trial by jury.” She also 

stated that she did not receive a copy of the dismissal order until March 4, 2011, 

when she tried to file a “motion for trial by jury.” She requested “that the court 

grant this motion [for] appeal on reopening this case to be settle[d] and for all just 

relief and justice be made.”

Appellate Jurisdiction

Progressive and Donahue contend that we should dismiss Anderson’s appeal 

for want of jurisdiction because she failed to file a timely notice of appeal.

An appellant perfects an appeal when she files a written notice of appeal in 

the trial court. TEX. R. APP. P. 25.1(a), (b). Generally, the appellant must file her 

notice of appeal within thirty days after the date the trial court signs the judgment 

or appealable order. TEX. R. APP. P. 26.1. This time period may be extended to

ninety days from the date the judgment is signed if any party timely files a motion 

for new trial, motion to modify the judgment, motion to reinstate pursuant to Texas 

Rule of Civil Procedure 165a, or request for findings of fact and conclusions of 
8

law, if such findings and conclusions are required. Id. The appellate court may 

further extend the time to file the notice of appeal if, within fifteen days after the 

deadline passes, the appellant files (1) the notice of appeal in the trial court and 

(2) a motion for extension of time complying with Rule of Appellate Procedure 

10.5(b) in the appellate court. TEX. R. APP. P. 26.3; see also TEX. R. APP. P.

10.5(b) (stating required contents for motions to extend time, including “the facts 

relied on to reasonably explain the need for an extension”); Verburgt v. Dorner, 

959 S.W.2d 615, 617 (Tex. 1997) (holding that motion to extend time is 

“necessarily implied” if appellant files notice of appeal within fifteen-day 

extension period). The appellant must offer a reasonable explanation for her 

failure to file a timely notice of appeal. See TEX. R. APP. P. 10.5(b); TEX. R. APP.

P. 26.3; Jones v. City of Houston, 976 S.W.2d 676, 677 (Tex. 1998).

Texas Rule of Appellate Procedure 4.2 provides for an additional extension 

of time to file a notice of appeal if, within twenty days after the judgment was 

signed, the party has not received notice or does not have actual knowledge of the 

signing. TEX. R. APP. P. 4.2(a)(1). In this case, the time to perfect an appeal will 

begin on the earlier of the date the party receives notice or acquires actual 

knowledge of the signing, “[b]ut in no event may the periods begin more than 90 

days after the judgment or order was signed.” Id. To take advantage of this rule, 

the appellant must comply with Texas Rule of Civil Procedure 306a(5), which 
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requires the appellant “to prove in the trial court, on sworn motion and notice, the 

date on which the party or his attorney first either received a notice of the judgment 

or acquired actual knowledge of the signing and that this date was more than 

twenty days after the judgment was signed.” TEX. R. APP. P. 4.2(b); TEX. R. CIV.

P. 306a(5).

Here, the trial court signed the order dismissing Anderson’s claims against 

Donahue on September 20, 2010. Because the trial court had already rendered 

summary judgment in favor of Progressive, this order became a final and 

appealable judgment. Anderson did not timely file a post-judgment motion. Thus, 

Anderson was required to file her notice of appeal within thirty days of the date the 

trial court signed the order, that is, by October 20, 2010. She did not file her 

“motion for appeal” until March 29, 2011, six months and nine days after the trial 

court signed the dismissal order. Because Anderson did not file a notice of appeal 

in the trial court within thirty days after the court signed the dismissal order or 

within the fifteen-day grace period during which she could have moved for an 

extension of time, we conclude that she did not timely perfect her appeal.3

 

3 Anderson is not entitled to an extension pursuant to Texas Rule of Appellate 

Procedure 4.2 because she did not file a sworn motion in the trial court setting out 

the date that she received notice or acquired actual knowledge of the dismissal 

order. See TEX. R. APP. P. 4.2(b) (providing that, to take advantage of extension, 

party must comply with procedure set out in Rule of Civil Procedure 306a(5)); see 

also TEX. R. CIV. P. 306a(5). Furthermore, Rule 4.2 explicitly states that the 

extended time period “in no event” may “begin more than 90 days after the 
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Conclusion

We dismiss the appeal for want of jurisdiction. All pending motions are 

denied as moot.

Evelyn V. Keyes

Justice 

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.

 

judgment or order is signed.” TEX. R. APP. P. 4.2(a)(1). More than ninety days 

had elapsed from the date the trial court signed the dismissal order before 

Anderson attempted to appeal.