Henry DeAnda, et ux. v. Joseph M. Hill, Bankruptcy Trustee--Appeal from 361st District Court of Brazos County

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No. 10-96-213-CV









From the 361st District Court

Brazos County, Texas

Trial Court #39,239-361




Henry and Nancy DeAnda attempt to appeal a summary judgment granted in favor of Joseph Hill as the bankruptcy trustee of the Henry and Nancy DeAnda estate. The DeAndas seek an extension of time to file a cost bond. Because the applicable time constraints run from the date the judgment was signed, as opposed to the date the judgment was filed, all of the DeAndas' post-judgment filings are untimely, and we do not have jurisdiction over this cause. Accordingly, we deny their motion and dismiss this appeal.

The DeAndas are the beneficiaries of seven trusts set up over an eight year period. After they declared bankruptcy, the bankruptcy trustee sought a declaratory judgment establishing that the assets of the trusts were available to satisfy the DeAndas' debts. The trustee also requested attorneys fees and relief under the Texas Uniform Fraudulent Transfer Act. Tex. Bus. & Com. Code Ann. 24.001 et. seq. (Vernon 1987 & Supp. 1996). After the trial court granted a partial summary judgment, declaring that the trust assets were available to the bankruptcy estate, Hill abandoned his claims for attorneys fees and those under the Fraudulent Transfer Act, and moved the court for a final judgment. On May 20, 1996, the court signed a "Final Judgment" with the same terms as the partial summary judgment and specifically denied all other relief. This judgment was filed stamped by the court clerk's office ten days later on May 30.

On June 27, the DeAndas filed a motion for a new trial and on the next day they filed a request for findings of fact and conclusions of law. Neither of these motions were acted upon by the trial court on the record before us. Attempting to perfect an appeal from the court's order, the DeAndas then filed a notice of appeal on August 30. Although their appeal was assigned to this court, the DeAndas filed a motion to extend the time to file a cost bond in the Houston 1st District Court of Appeals on September 9. On the same day that they mailed the motion to extend time, September 6, they filed a cost bond in the trial court. Hill mailed a response to DeAnda's motion to the 1st Court of Appeals on September 11. At this point, either the court or the parties realized that they were conducting the appeal before the wrong court. We received the transcript, the Deandas' motion to extend time, Hill's response, all filed in the 1st Court of Appeals, and the Deandas' reply to Hill's response, filed originally in this court, on September 19.

A motion for a new trial must be filed within thirty days of the date the judgment is signed. Tex. R. Civ. P. 329b. Similarly, to perfect an appeal a party must file its perfection instrument within thirty days of the signing of the judgment, absent a timely motion for a new trial, to modify the judgment, or, in an appropriate cause, a request for findings of fact and conclusions of law. Tex. R. App. P. 41(a)(1). Failing to meet the thirty day deadline for perfecting its appeal, a party may resort to the extension-of-time provision contained in the Rule of Appellate Procedure and request more time to perfect its appeal by a motion filed in the appellate court within fifteen days of the due date of its cost bond. Id. 41(a)(2).

Here, the court signed the summary judgment on May 20 and the motion for a new trial was due by June 19. Tex. R. Civ. P. 329b. The DeAndas did not file their motion until June 27, eight days too late. Thus, the appellate deadlines were not affected, and they were required to perfect their appeal within thirty days of the signing of the judgment, i.e., also by June 19. Tex. R. App. P. 41(a)(1); Benyo v. Hem, 833 S.W.2d 714, 715-16 (Tex. App. Houston [1st Dist.] 1992, no writ). Failing to meet that deadline, they had until July 5 to file a motion for extension of time to file their cost bond. // Again, they failed to meet this deadline.

The time period for filing a cost bond is jurisdictional. Davies v. Massey, 561 S.W.2d 799, 801 (Tex. 1978); El Paso Sharky's v. Amparan, 831 S.W.2d 3, 5 (Tex. App. El Paso 1992, writ denied). Because the DeAndas failed to perfect their appeal within the jurisdictional time period and failed to timely request an extension of time for late filing of the cost bond, we lack jurisdiction to entertain the appeal. Ryder v. State, 917 S.W.2d 503, 505 (Tex. App. Waco 1996, no writ); McDonald v. Newmyer, 775 S.W.2d 652, 653 (Tex. App. Houston [1st Dist.] 1989, writ denied).

In their motion for an extension of time, the DeAndas alternatively request that they be "allowed to file an equitable bill of review as an original suit." In their response to Hill's reply to their motion to extend time, the DeAndas ask that we find that the judgment is not final and dismiss this appeal as an attempted appeal from an interlocutory judgment. Finally, also in their reply, they ask that we abate the appeal and order the controversy into mediation. However, when we lack jurisdiction over a cause the only legitimate action we can take is to dismiss the appeal. State v. Morales, 869 S.W.2d 941, 949 (Tex. 1994). Accordingly, the DeAnda's motion for an extension of time to file the cost bond is denied and this appeal is dismissed for want of jurisdiction.


Before Chief Justice Davis,

Justice Cummings, and

Justice Vance

Motion denied; dismissed for want of jurisdiction

Opinion delivered and filed October 16, 1996

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