Ricardo Monroy v. Cecilia Rangel Estrada

Criminal Case Template COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS RICARDO MONROY, Appellant, v. CECILIA RANGEL ESTRADA, Appellee. § § § § § No. 08-03-00381-CV Appeal from the 120th District Court of El Paso County, Texas (TC#2001-032) MEMORANDUM OPINION Appellee Cecilia Rangel Estrada argues that this Court should dismiss Appellant Ricardo Monroy’s appeal because Monroy failed to provide a reasonable explanation for filing his notice of appeal late. For the reasons explained below, we disagree with Estrada’s argument and we will reinstate this appeal and deny her motion to dismiss. Procedural Background The trial court signed a final judgment on May 14, 2003. Monroy filed a timely motion for new trial, which the trial court denied by written order on July 2, 2003. Monroy then filed a motion for reconsideration of the motion for new trial, which the trial court denied by written order on August 1, 2003. On August 18, 2003, Monroy filed a notice of appeal, an affidavit of inability to pay costs of the appeal, and a motion for extension of time. In the motion for extension of time, Monroy’s counsel stated that she mistakenly believed the deadline for filing the notice of appeal was August 31, 2003--thirty days from the date the last order was signed. We granted the motion for extension of time. Meanwhile, the trial court sustained Estrada’s contest to the affidavit of inability, and Monroy perfected a separate appeal of that ruling, which we have docketed as Cause Number 08-03-00426-CV. We abated this appeal pending resolution of Cause Number 08-03-00426-CV. We later removed both appeals from our docket because Monroy filed a bankruptcy petition. Monroy has now filed motions to reinstate both appeals because the bankruptcy court has modified the stay to allow him to pursue this litigation to a final judgment. Currently pending before this Court are the motions to reinstate, as well as a motion to dismiss filed by Estrada. Motion to Reinstate An appeal that has been suspended by a bankruptcy filing may be reinstated if permitted by the bankruptcy court. Tex. R. App. P. 8.3(a). Here, the bankruptcy court has modified the stay for the express purpose of allowing this litigation to proceed to final judgment. We will therefore reinstate this appeal on the docket of this Court. Motion to Dismiss The Parties’ Arguments In her motion to dismiss, Estrada argues that Monroy has not provided a reasonable explanation for failing to file the notice of appeal on time. She notes that Monroy’s attorney sent her attorney a letter containing an offer of settlement that expired at the end of business on August 11, 2003. The letter stated that if Estrada’s attorney did not respond by that time, Monroy’s attorney would file a notice of appeal on August 12, 2003. Since August 12, 2003 was the deadline for filing the notice of appeal, Estrada asserts that the letter “supports the assumption that Appellant was well aware” of the deadline and that the failure to file the notice by the deadline was deliberate and intentional. Estrada reasons that if Monroy’s counsel really believed that the notice of appeal was not due until August 31, 2003, “it is likely” that she would have set the deadline for responding to the offer of settlement closer to that date. In response to the motion to dismiss, Monroy’s attorney has filed an affidavit in this Court, stating: “I categorically and unequivocally deny the allegations contained in Appellee’s Motion to Dismiss. Prior to August 14, 2003, I did not know that the deadline to file Appellant’s Notice of Appeal was August 12, 2003.” She reiterates that she mistakenly believed she had thirty days from the date the last order was signed to file the notice of appeal. Counsel also avers that she intended to file the notice of appeal on August 12 because she did not want to be filing the appeal on the last day. In spite of this intent, other work commitments took precedence, and when she finally began drafting documents for the appeal on August 14, she realized her error. She then filed the notice of appeal as soon as she could. Counsel concludes by stating: “I did not deliberately, nor did I intentionally choose to file Appellant’s Notice of Appeal late. If I had known the deadline was August 12, 2003, I would have filed the Notice of Appeal on or before that date.” Discussion When, as in this case, any party files a timely motion for new trial, the notice of appeal must be filed within ninety days of the date the judgment was signed. Tex. R. App. P. 26.1(a)(1). The appellate court may extend the time for filing the notice of appeal if the notice is filed within fifteen days after the deadline and the appellant reasonably explains the need for the extension. See Tex. R. App. P. 10.5(b)(1)(C), 10.5(b)(2)(A), 26.3; Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). The Texas Supreme Court has given appellate courts very clear guidance for determining whether an appellant has reasonably explained a delay in filing a notice of appeal. The court has held that a reasonable explanation is “any plausible statement of circumstances indicating that failure to file . . . was not deliberate or intentional, but was the result of inadvertence, mistake or mischance.” Meshwert v. Meshwert, 549 S.W.2d 383, 384 (Tex. 1977). Any conduct short of deliberate or intentional noncompliance qualifies as inadvertence, mistake, or mischance. Garcia v. Kastner Farms, 774 S.W.2d 668, 670 (Tex. 1989). In other words, “[a]bsent a finding that an appellant’s conduct was deliberate or intentional, the court of appeals should ordinarily accept the appellant’s explanations as reasonable.” Hone v. Hanafin, 104 S.W.3d 884, 887 (Tex. 2003). This is true even if the explanation reveals a misunderstanding of the law or professional negligence. Garcia, 774 S.W.2d at 670; see also Container Port Servs. v. Gage, 719 S.W.2d 662, 664-65 (Tex. App.--El Paso 1986, no writ) (holding that counsel’s lack of attention and carelessness constituted a reasonable explanation for failing to make a timely request for the statement of facts). More generally, the supreme court has stated: This Court has never wavered from the principle that appellate courts should not dismiss an appeal for a procedural defect whenever any arguable interpretation of the Rules of Appellate Procedure would preserve the appeal. . . . . Our decisions reflect the policy embodied in our appellate rules that disfavors disposing of appeals based upon harmless procedural defects. Thus, we have instructed the courts of appeals to construe the Rules of Appellate Procedure reasonably, yet liberally, so that the right to appeal is not lost by imposing requirements not absolutely necessary to effect the purpose of a rule. Verburgt, 959 S.W.2d at 616-17 (citations and footnote omitted). In this case, Estrada invites us to infer that the failure to file the notice of appeal on time was deliberate and intentional and that Monroy’s attorney knew the deadline for filing the notice of appeal, because the offer of settlement expired the day before the deadline and counsel stated her intent to file the notice of appeal on the deadline. We could just as easily infer that the failure was not deliberate and intentional. Since Estrada admits that she expressly rejected the offer of settlement on August 11, there would seem to be no reason for Monroy to deliberately delay filing the notice of appeal. More importantly, we have an affidavit from Monroy’s counsel, in which she explains her misunderstanding of the law and unequivocally disavows deliberately or intentionally failing to file the notice of appeal on time. Based on this affidavit from an officer of the court and the guidance provided us by the supreme court, we conclude that Monroy has offered a reasonable explanation for failing to file the notice of appeal on time. Therefore, we will deny Estrada’s motion to dismiss. Conclusion For the reasons stated herein, this Court orders the following: (1) the Appellant’s motion to reinstate appeal is granted and this appeal is reinstated on the docket of this Court; (2) Estrada’s motion to dismiss is denied; and (3) this appeal is abated pending our final disposition of Cause Number 08-03-00426-CV or further order of this Court. SUSAN LARSEN, Justice June 24, 2004 Before Panel No. 1 Larsen, McClure, and Chew, JJ.