Motion to Dismiss Denied ; Motion to Review Supersedeas Denied; Order filed

August 2 6 , 2014

.

In The



## Fourteenth Court of Appeals

NO. 14

- 14

- 00616

- CV

DAVID ISAAC CISNEROS , Appellant

V.
LAURETTE CISNEROS , Appellee

On Appeal from the Co unty Civil C our t at Law No

. 1

Harris County, Texas Trial Court Cause No. 1047022


### O R D E R This is an appeal from a judgment signed June 2, 2014 , in a forcible detainer action

. On June 11, 2014, appellant filed a bond in the amount of $100, which was
the amount set by the tria l court to supersede the judgment. See Tex. Prop. Code § 24.007(a) ( provid ing “a judgment of a county court in an eviction suit may not under any circumstances be stayed pending appeal unless, within 10 days of the signing of the judgment, the appellant fi les a supersedeas bond in an amount set by the county court”). The clerk’s record reflects that after the statutory deadline for2

filing a supersedeas bond had passed, a ppellee moved for issuance of a writ of possession in the court below , asserting that ap pellant’s supersedeas bond was defective because it was not the original instrument

. See Tex. R. App. P. 24.1(a)(2) (providing a judgment debtor may supersede a judgment by filing “a good and sufficient bond”) ; see also Harris Cnty. (Tex.) Cts. Loc. R. 3.3 (a)(ii) (excepting bonds from the rule providing for electronic filing). 1 The record reflects appellant filed the original bond on June 18, 2014, after the statutory deadline. Appellee also asserted the bond was defective because it states “Plaintiff will pay to the Defendant” the bond amount instead of being payable to the judgment creditor. See Tex. R. App. P. 24.1(b)(1)(B) (providing the bond must be payable to the judgment creditor). Appellant filed a respon se in opposition to appell ee ’s motion to issue a writ of possession . On July 3, 2014, the trial court signed an order granting appellant an extension of time to submit a corrected supersedeas bond and raising the amount of the security required to $1,000. Appellee filed a motion to reconsider the tria l court’s July 3, 2014, order granting appellant additional time to supersede the judgment. Appellant filed a response in opposition to appellee’s motion on July 7, 2014. On July 8, 2014, appellant filed a cash deposit in lieu of the $1,000 bond. Appellant ’s notice of appeal was filed July 23, 2014.
In this court, a ppellee filed a motion to dismiss the appeal, asserting that appellant’ s notice of appeal is untimely. See Tex. R. App. P. 42.3(a). Appellee also

1 Appellee’s cited authorities address certificates f iled in lieu of a bond under the former rules of appellate procedure and are not on point

. See Mercantile Bank & Trust v. Cunov , 713 S.W.2d 717, 718 (Tex. App.

— San Antonio 1987, no wri t) (citing predecessor rule and holding a deposit of nonnegotiable recei pts was insufficient to suspend execution) ; Stiles, Inc. v. Evans , 658 S.W.2d 676, 677 (Tex. Civ. App.

— D allas, 1983, writ ref ’ d n.r.e.) (citing the former rules and holding the judgment was not superseded where appellant filed a certificate in lieu of a bo nd that did not constitute a bond because no surety was named and did not establish a deposit was made in lieu of bond).3

filed a motion asking that we review the trial c ourt’s ruling granting appellant an extension of time to file a corrected supersedeas bond. See Tex. R. App. P. 24.4(a)(4). Appellant filed a response in opposition. The notice of appeal must be filed within thirty days after the judgment is signed when ap pellant has not filed a timely motion for new trial, motion to modify the judgment, motion to reinstate, or request for findings of fact and conclusion of law. See Tex. R. App. P. 26.1. According to the record, appellant did not file a timely motion for ne w trial or other post

- judgment motion

. Therefore, appellant’s notice of appeal was due on or before July 2, 2014. A motion for extension of time is necessarily implied when an appellant, acting in good faith, files a notice of appeal beyond the time allowe d by Rule 26.1, but within the fifteen

- day grace period provided by Rule 26.3 for filing a motion for extension of time. See Verburgt v. Dorner , 959 S.W.2d 615, 617

– 18 (1997) (construing the predecessor to Texas Rule of Appellate Procedure 26 ). The fifteen

day grace period expired July 17, 2014. Appellant = s notice of appeal was filed July 23, 2014, beyond the fifteen

- day period provided by Rule 26.3. Neither appellee’s post

- judgment motions for issuance of a writ of possession and for reconsideration nor ap pellant’s responses thereto operated to extend the appellate timetable. See Tex. R. App. P. 26.1. An order modifying security does not constitute a modification of the judgment that will extend the time to perfect an appeal. T he purpose of filing a bond or cash deposit “is to protect assets during an appeal.” Gregorian v. Ewell , 106 S.W.3d 257, 25 9 (Tex. App.

— Fort Worth 2003, no pet.) (recognizin g that an order that determined the sufficiency of the cas h deposit in lieu of supersedeas did not extend the app ellate timetable)

. The trial court’s plenary power expired July 2, 2014, thirty days after its4

final judgment was signed. See Tex. R. Civ. P. 329b(d). After the trial court’s plenary power has expired, the trial court has continuing jurisdiction to order the amount and type of security, decide the sufficiency of sureties, and , if circumstances change, modif y the amount or type of security required to continue the suspension of a judgment’s execution. Tex. R. App. P. 24.3(a) ; see also Mi ller v. Kennedy & Mi nshew, P

. C ., 80 S.W.3d 161, 164 (Tex. App.

— Fort Worth 2002, no pet.)

. T he S upreme C ourt of Texas repeatedly has urged courts of appeals to interpret the appellate rules, whe n ever possible, to achieve the aim of furthering resolution of appeals on the merit s

. See Warwick Towers Council of Co

– Owners ex rel. St. Paul Fire & Marine Ins. Co. v. Park Warwick, L.P. , 244 S.W.3d 838, 839 (Tex. 2008) (per curiam) (requiring court of appeals to grant appellant an opportunity to amend a defective notice of appeal); Ben nett v. Cochran , 96 S.W.3d 227, 230 (Tex. 2002) (relaxing the time deadline for filing a statement of points or issues under rule 34.6(c)(1) absent a complaint of prejudice). A court of appeals has jurisdiction if an appellant files an instrument that is i mproper but constitutes a bona fide attempt to invoke appellate jurisdiction. Linwood v. NCNB Tex ., 885 S.W.2d 102, 103 (Tex. 1994) (holding improper filing of notice of appeal, rather than required cost bond under former rules, sufficed as bona fide attem pt to invoke appellate jurisdiction); Grand Prairie I

. S.D. v. S. Parts Imports, Inc. , 813 S.W.2d 499, 500 (Tex. 1991) ( applying the prior version of the appellate rules, which made the cost bond rather than a notice of appeal the perfecting instrument , and holding that the court of appeals must give appellant filing an improper document in a bona fide effort to perfect an appeal an opportunity to correct the error by filing the correct instrument).

The Second Court of Appeals has granted appellant s an exte nsion of time to perfect an appeal in a situation similar to the one at issue

. See Gregorian , 1065

S.W.3d at 258

– 60

. The court he ld that a ppella nts invoked the court’s jurisdiction by making a bona fide attempt to appeal when they filed their cash deposit i n lieu of supersedeas bond within the period required for perfecting their appeal. Id. at 260. The Third Court of A ppeals ruled similarly in an appeal in a forcible detainer action. S ee Epstein v. Bank of Am., N.A ., No. 03

- 13

- 00608

- CV, 2013 WL 6002876 (Tex . App.

— Austin Nov. 8, 2013, no pet.) (mem. op.)

. The court held “the deposit of the amount of security ordered by the trial court to supersede the judgment

— an action whose purpose and effect is to prevent enforcement of the trial court ’ s judgment during an appea l

— represents the sort of ‘bona fide attempt’ to invoke appellate jurisdiction that confers such jurisdiction .” Id. at *2. The Supreme Court of Texas , applying former R ule of A ppellate P rocedure 41(a)(1), held that an affidavit in lieu of cost bond fi led within the fifteen

- day time for filing a motion for extension of time to perfect the appeal , implied a motion for extension , subject to establishing a reasonable basis for the extension

. Jones v. City of Houston , 976 S.W.2d 676, 677 (Tex. 1998) ; s ee al so Grand Prairie I.S.D ., 813 S.W.2d at 500 (holding that the filing of a notice of appeal rather than a cost bond under the former rules sufficed as a bona fide attempt to appeal )

. Based on these authorities, we conclude that appellant made a bona fide

att empt to invoke our jurisdiction when he filed a supersedeas bond and later a cash deposit in lieu of the increased bond . By depositing the cash within the fifteen

- day period for filing an extension of time, a motion for extension of time is implied. See Jo nes, 976 S.W.2d at 677; Epstein , 2013 WL 6002876 at *2; Gregorian , 106 S.W.3d at 258. A ppellant is still obligated to come forward with a reasonable explanation to support the late filing , however

. See Miller v. Greenpark Surgery Ctr

. Assocs., Ltd. , 974 S. W.2d 805, 808 (Tex. App.

— H ouston [14th Dist.] 1998, no pet.). We grant appellant an opportunity to file a motion for extension of time to perfect his appeal providing an explanation for the late filing on or before6

September 9 , 2014

. See Tex. R. App. P. 26 .3, 10 .5(b). We deny appellee’s motion to dismiss the appeal for want of jurisdiction. If appellant fails to comply with this order , however, the court shall dismiss the appeal. See Tex. R. App. P. 42.3(a). We also deny appellee’s motion challenging the trial court’s order granting appellant an extension of time to file a corrected supersedeas bond

. Texas Property Code section 24.007(a) provid es that a judgment of a county court in an eviction suit may not under any circumstances be stayed pending appeal unless, within ten days of the signing of the judgment, the appellant files a supersedeas bond in an amount set by the county court. See Tex. Prop. Code § 24.007(a). This statute does not state, however, that the original bond , as opposed to a copy of the bond, must be filed within ten days of the signing of the judgment

. See id

. Appellant timely filed a copy of the bond in an amount set by the trial court

. See Tex. Prop. Code § 24.007(a). Although it is noted that the bond is a copy, the record does not re flect tha t the clerk failed to approve it. See Tex. R. App. P. 24.1(b)(2) (“To be effective a bond must be approved by the trial court clerk.”). Appellant argued in the court below that the clerk accepted the bond, but instructed him to file the original a s soon as possible. Appellee cites no authority precluding amendment of a defective bond. W e conclude that Property Code section 24.007(a) may be satisfied by the timely filing of a copy of the bond under the circumstances presented in this case

. The trial court has continuing jurisdiction to modify a supersedeas bond

. See Tex. R. App. P. 24.3(a ) ; see also Whitmire v. Greenridge Place Apts. , 333 S.W.3d 255, 260 (Tex. App.

— Houston [1st Dist.] 2010, pet. dism’d). An appellant may be require d to file a new bon d to cure defects. See Davis v. Jefferies , 764 S.W.2d 559, 560 (Tex. 1989) (applying former Tex. R. App. P. 46(f)). This court may require the amount of the bond increased or order a new bond. Tex. R. App. P. 24.4(d). If we do so, enforcement is suspended for twenty days to give appellant an opportunity to comply. Tex. R. App. P. 24.4 (e). Therefore, the rules contemplate7

modifications to the supersedeas requirements and the security posted. We conclude the trial court acted within its discretion in grantin g appellant an opportunity to amend his defective bond and deny appellee’s motion challenging this order.

PER CURIAM

Panel consists of Chief Justice Frost and Justices Christopher and Donovan

. Publish

.