Mark Gabioud d/b/a Itasca Affiliated v. Keebler Company and Blue Bell Creameries d/b/a Blue Bell Ice Cream, Inc.--Appeal from 66th District Court of Hill County

Annotate this Case

IN THE

TENTH COURT OF APPEALS

 

No. 10-96-079-CV

 

MARK GABIOUD D/B/A ITASCA AFFILIATED,

Appellant

v.

 

KEEBLER COMPANY AND BLUE BELL CREAMERIES

D/B/A BLUE BELL ICE CREAM, INC.,

Appellees

 

From the 66th District Court

Hill County, Texas

Trial Court # 33,771-B

 

MEMORANDUM OPINION

 

By this opinion, we consider three motions: Keebler Company's motion to dismiss for want of jurisdiction, Mark Gabioud's motion to reconsider our denial of his motion for an extension of time to file the record, and Keebler's motion to dismiss for failing to file the record timely. We will grant Keebler's motion to dismiss for want of jurisdiction because, after we conclude that Gabioud has failed to show that he is entitled to the benefits of the "mailbox" rule for timely filing his motion for a new trial, his cost bond was not timely filed. As alternative rulings, we dispose of the other two motions as well. We deny Gabioud's motion to reconsider because it is actually an untimely motion for an extension of time to file the record. Absent an extension of time, no part of the record was timely filed and we will grant Keebler's second motion to dismiss based on Gabioud's failure to provide us with a record.

BACKGROUND

Gabioud sued Keebler, Blue Bell, and four other food-products suppliers, alleging that they engaged in anti-competitive "volume pricing" practices that violated the Texas Anti-Trust Act and forced him to close his small grocery store business. Tex. Bus. & Com. Code Ann. 15.01 et seq. (Vernon 1987 & Supp. 1996). Based on special exceptions filed by Keebler and Blue Bell, the court ordered Gabioud to replead his claims by August 21, 1995. When Gabioud failed to comply with the court's order, Keebler and Blue Bell moved to dismiss his suit. The court granted the motion to dismiss on October 3, 1995, and severed these two defendants on January 9, 1996.

Gabioud filed a motion for a new trial on February 19. On April 11 he filed a cost bond in the trial court and, one week later, a motion in this court seeking an extension of time to perfect his appeal. Tex. R. App. P. 41(a)(2). Keebler opposed Gabioud's request for an extension of time and argued that we should dismiss this cause for want of jurisdiction because the motion for a new trial was not timely filed and, thus, did not act to extend the appellate timetable. // Tex. R. Civ. P. 329b(a); Tex. R. App. P. 41(a)(1). In response, Gabioud alleged that he was entitled to the benefits of the "mailbox rule." Tex. R. Civ. P. 5. We granted Gabioud's motion for an extension of time, allowing him until April 22 to perfect his appeal, subject to a ruling on the motion to dismiss after we had received and examined the transcript. We expressly withheld a ruling on Keebler's motion to dismiss until that time.

On May 10, Gabioud moved for an extension of time to file the record. Tex. R. App. P. 54(c). He claimed that "counsel's office experienced a computer hard disk crash during the latter part of April, 1996 which hampered Appellant's counsel in preparing the designation of the record on appeal and determining the portion(s) of the statement of facts to order." Keebler again responded to Gabioud's request, arguing that Gabioud failed to offer a reasonable explanation for the requested extension of time and, alleging that Gabioud had failed to make a timely written request to the court reporter, that he had failed to reasonably explain his delay in making the designation of the materials to be included in the statement of facts. Id. 53(a), 54(c). We denied Gabioud's motion on May 22, citing rules 53(a), 54(c) and 73(i) of the Texas Rules of Appellate Procedure. Id. 53(a), 54(c), 73(i). Two days later, we received, but did not file, the one volume transcript prepared by the trial court's clerk. Id. 56(a).

Gabioud requested for a second time that we extend the time to file the transcript and statement of facts by his "Motion For Reconsideration Of Appellant's Motion For Enlargement Of Time Within Which To File Transcript Of Appeal And Statement Of Facts." He repeated his assertion that computer problems delayed his designation of the record and attached an affidavit from the court reporter to this second motion. Id. 73(i). In response, Keebler correctly pointed out that the court reporter indicated that Gabioud did not make a written request for the statement of facts and that his oral request was not made until May 22, well outside the "time for perfecting the appeal." Id. 53(a). //

JURISDICTION

To invoke our jurisdiction, an appellant must perfect his appeal within the time frame set out in the Texas Rules of Appellate Procedure. Id. 41(a)(1); Davies v. Massey, 561 S.W.2d 799, 800-01 (Tex. 1978); El Paso Sharky's v. Amparan, 831 S.W.2d 3, 5 (Tex. App. El Paso 1992, writ denied). A timely motion for a new trial extends the appellate timetable in general, and specifically lengthens the period for perfection to ninety days after the judgment is signed. Tex. R. App. P. 41(a)(1), 54(a). To be timely, the motion for new trial must be filed within thirty days of the judgment or complained of order. Tex. R. Civ. P. 329b(a). Because the court first dismissed the suit against Keebler and Blue Bell and then severed these defendants from the suit, the time began to run upon the signing of the severance order, i.e. on January 9, 1996. Martinez v. Humble Sand & Gravel, Inc., 875 S.W.2d 311, 313 (Tex. 1994). Thus, Gabioud must have filed his motion for a new trial by February 8. A motion is considered timely filed if it "is sent to the proper clerk by first class United States mail in an envelope or wrapper properly addressed and stamped and is deposited in the mail on or before the last day for filing . . . if received by the clerk not more than ten days tardily." Tex. R. Civ. P. 5. Here, the ten day grace period for receiving a timely mailed motion expired on the eleventh day, February 19, because the tenth day, February 18, fell on a Sunday. Id. 4.

The motion for a new trial contained in the transcript was filed on February 19. Therefore, if Gabioud can satisfy the requirements of Rule 5, the motion is considered timely filed. Id. 5. There is nothing in the transcript to indicate when the motion was mailed. However, although a legible United States Postal Service postmark is prima facie evidence of the date of mailing, there are other means available for showing when the motion was mailed. See Lofton v. Allstate Ins. Co., 895 S.W.2d 693, 693-94 (Tex. 1995). Gabioud has attempted to satisfy the mailbox rule in his response to Keebler's motion to dismiss for want of jurisdiction by attaching, as exhibit A, a copy of a U.S. Postal Service receipt for certified mail showing that something was mailed to the trial court on February 8 and, as exhibit B, a copy of a return receipt from the trial court showing that the same article was received by the clerk of the court. A handwritten note on the face of the return receipt states "Gabioud Mo for New Trial". In his response, Gabioud asserts "Exhibit A' conclusively establishes that [the] Motion for new Trial was mailed on . . . the last day for filing same . . .'" Finally, Gabioud's attorney has verified the motion, swearing that "all of the facts contained therein are true and correct."

We do not believe that Gabioud has satisfied the requirements of Rule 5. Tex. R. Civ. P. 5. Nowhere in the response does he expressly and explicitly state that the motion for new trial was mailed on February 8 as a fact; the date of mailing is only recited as a conclusion to be drawn from exhibit A. Exhibit A does not establish what was mailed, only that something was mailed. The attorney's verification is general and there is no affidavit stating the facts of the mailing as contemplated by Lofton. Lofton, 895 S.W.2d at 693. Although the attorney has sworn that exhibits A and B are true and correct copies, he has not sworn that these exhibits are related to the motion for new trial at issue here. Therefore, we conclude that Gabioud has not shown that he timely mailed the motion for a new trial.

Because no timely motion for a new trial was filed, Gabioud must have perfected his appeal within thirty days of the severance order. Tex. R. App. P. 41(a)(1); Martinez, 875 S.W.2d at 313. His cost bond, filed on April 11, was sixty-two days too late. Thus, he has failed to invoke our jurisdiction and we must grant Keebler's motion to dismiss for want of jurisdiction. Tex. R. App. P. 60(a)(1).

THE RECORD

No Timely Motion for a New Trial

Because we have found that Gabioud failed to file his motion for a new trial timely, we must also conclude that the appellate timetables were not extended, and the record was due in this court sixty days after the judgment was signed. Id. 54(a). Thus, Gabioud should have filed the record by March 11. Id. 5(a), 54(a). Failing to file the record by that day, he had fifteen more days, i.e. until March 26, to file a motion for an extension of time to file the transcript or statement of facts. Id. 5(a), 54(c). His first motion for an extension of time was filed on May 10 and the second motion to reconsider was filed on May 29. Both motions were filed well outside the time allowed for such requests. Id. Thus, under these facts, we do not have the authority to grant Gabioud an extension of time to file the record. Id. 83; Texas Instruments v. Teletron Energy Mgt., 877 S.W.2d 276, 278 (Tex. 1994); B.D. Click Co. v. Safari Drilling Corp., 638 S.W.2d 860, 862 (Tex. 1982).

Timely Motion for a New Trial

Alternatively, assuming we are incorrect and Gabioud's response to Keebler's motion to dismiss for want of jurisdiction is sufficient to show that he met the requirements of Texas Rules of Civil Procedure 5, we deny his motion for "reconsideration" because we conclude that it does not request a reexamination of his first motion, but rather requests an extension of time on its own. The second motion does not refer back to the first motion except for in its title. In fact, Gabioud affirmatively asserts in the second motion that "[n]o prior enlargement of time for filing of transcript or Statement of Facts has been sought by Appellants . . . ." The facts recited by the court reporter in her affidavit indicate that Gabioud did not contact her until after we denied the first motion for an extension of time. Thus, he attempts to rely on new circumstances to revive an old motion, which indicates, to us, that the "motion to reconsider" is, in fact, an independent motion for an extension of time.

If the motion for a new trial was timely, Gabioud had 135 days after the severance to file his motion for an extension of time to file the record. Tex. R. App. P. 54(a), (c). Thus, the motion must have been filed by May 23. His first motion was timely, but the second motion, filed on May 29, falls outside of the permissible date. As an independent motion for an extension of time filed six days after the time for filing expired, we do not have the authority to grant his requested extension. Id. 83; Texas Instruments, 877 S.W.2d at 278; B.D. Click, 638 S.W.2d at 862. Thus, we deny his so-called motion for reconsideration of his motion for an extension of time to file the record. Tex. R. App. P. 54(c).

Keebler's Motion to Dismiss for Failing to File the Record

Keebler requests that we dismiss this appeal because Gabioud failed to file a record. We recognize that we are obligated to allow Gabioud to raise and argue any issues which he can on the record available to him in this court. Office of Public Utility v. P.U.O.T., 878 S.W.2d 598, 598-99 (Tex. 1994). However, absent a proper extension of time, we have "no authority to consider a late filed transcript or statement of facts." Tex. R. App. P. 54(a); Knight v. Sam Houston Memorial Hosp., 907 S.W.2d 847, 848 (Tex. App. Houston [1st Dist.] 1995, writ denied); M.B. v. State, 894 S.W.2d 82, 84 (Tex. App. El Paso 1995, no writ). We conclude, then, that Gabioud's failure to timely file the record or to obtain an extension of time to file it is fatal to his appeal. Jarrell v. Serfass, 916 S.W.2d 719, 721 (Tex. App. Waco 1996, no writ). Therefore, we also grant Keebler's motion to dismiss for failure to file the record. Tex. R. App. P. 60(a)(1).

DISPOSITION

Because we have concluded that Gabioud failed to file his cost bond timely, we grant Keebler's motion and dismiss this appeal for want of jurisdiction. Alternatively, because we conclude that Gabioud's motion for reconsideration is, in fact, an untimely motion for an extension of time to file the record, we deny his requested extension. Thus, he has failed to file any part of the record timely and we grant Keebler's motion to dismiss for failure to file the record.

This cause is dismissed.

PER CURIAM

Before Chief Justice Davis,

Justice Cummings, and

Justice Vance

Dismissed for want of jurisdiction, alternatively

Dismissed for failure to file the record

Opinion delivered and filed June 19, 1996

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