Pine Valley Home Buyers Association v. Pine Valley Development Co.

Order issued December 28, 2012

In The Court of Appeals For The First District of Texas

NO. 01-12-00014-CV

PINE VALLEY HOME BUYERS ASSOCIATION, Appellant

V.

PINE VALLEY DEVELOPMENT CO., Appellee

On Appeal from the 157th District Court Harris County, Texas Trial Court Cause No. 2005-42899

MEMORANDUM ORDER ON REHEARING

On November 1, 2012, we dismissed this appeal for want of prosecution, because appellant, Pine Valley Home Buyers Association, failed to pay for preparation of the clerk’s record. See TEX. R. APP. P. 37.3(b), 42.3(b). On *2 November 26, 2012, appellant filed a motion to reinstate the appeal, stating that the fees were paid on November 19, 2012 and that the “non-payment occurred as a result of a miscommunication between appellate counsel and trial counsel.”

On November 29, 2012, the Clerk of this Court informed appellant that the motion to reinstate the appeal had not been timely filed and requested that appellant provide an explanation for failing to timely file the motion. See TEX. R. APP. P. 49.1, 49.8; Sicking v. Sicking, No. 02-03-00345-CV, 2005 WL 1405810, at *1 (Tex. App.—Fort Worth June 16, 2005, no pet.); Simon v. Dillard’s, Inc., 86 S.W.3d 798, 801 (Tex. App.—Houston [1st Dist.] 2002, no pet.); cf. Jones v. City of Houston, 976 S.W.2d 676, 677 (Tex. 1998); Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). The Clerk also requested a response to the motion for rehearing from the appellee. See TEX. R. APP. P. 49.2.

Appellee Scott Stephens & Associates filed a response opposing the motion to reinstate on December 10, 2012. Appellee Maria Margarita Rodriguez and Rodriguez Appraisal Services, Inc. filed a response on December 11, 2012.

Appellant filed a “Response to Court’s Request” on December 10, 2012, explaining that, because of two deaths in counsel’s legal assistant’s family and counsel’s heavy workload, the deadline for filing a motion for rehearing was never placed on appellant’s counsel’s calendar.

Appellant’s motion to reinstate the appeal, although not filed by the November 16, 2012 deadline, was filed within the 15-day period for filing a motion for extension. See TEX. R. APP. P. 49.8. Further, appellant provided an explanation in its “Response to Court’s Request” showing that the failure to timely file the motion for rehearing was not deliberate or intentional. See Hone v. Hanafin, 104 S.W.3d 884, 886–87 (Tex. 2003); Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 669–70 (Tex. 1989). Accordingly, we imply a motion for extension of time to file a motion for rehearing and grant the extension. See TEX. R. APP. P. 49.8; Sicking, 2005 WL 1405810, at *1; Simon, 86 S.W.3d at 801; cf. Jones, 976 S.W.2d at 677; Verburgt, 959 S.W.2d at 617.

The trial court clerk filed the clerk’s record on November 19, 2012. Accordingly, we grant appellant’s motion, withdraw our opinion and judgment of November 1, 2012, and reinstate this case on the Court’s active docket.

Appellant’s brief is ordered to be filed within 30 days of the date of this order.1 See TEX. R. APP. P. 38.6(a). Appellee’s brief, if any, is ordered to be filed within 30 days of the filing of appellant’s brief. See TEX. R. APP. P. 38.6(b).

PER CURIAM

1 The court reporter filed an information sheet on February 6, 2012, stating that there is no reporter’s record in this case.

Panel consists of Justices Jennings, Higley, and Sharp.