The opinion
COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER ON MOTION FOR REHEARING
Appellate case name: Gonzalo Sosa v. Julio Garcia
Appellate case number: 01-13-01033-CV
Trial court case number: 1036389
Trial court: County Civil Court No. 1 of Harris County
On May 8, 2014, we dismissed this appeal for want of prosecution after appellant
did not respond to the Court’s notice that this appeal was subject to dismissal for failure
to timely file a brief. On May 20, 2014, appellant, Gonzalo Sosa, filed this motion for
rehearing, along with his appellate brief and second motion to extend time to file brief,
requesting that we accept the filing of his attached brief. Appellant’s counsel explains
that he failed to timely file his brief by March 27, 2014, because his office had a
complete crash of his computerized system that required an overhaul of his system and
his office was relocated within the building, resulting in a loss of calendaring and a
substantial part of his research. Appellee, Julio Garza, opposes both motions because
appellant is essentially seeking reinstatement of his appeal that was dismissed, not a
rehearing. We construe the appellant’s motion as one to reinstate the appeal, grant it, and
withdraw this Court’s May 8, 2014 Memorandum Opinion and Judgment.
If an appellant fails to timely file a brief, we may dismiss the appeal for want of
prosecution unless the appellant reasonably explains the failure and the appellee is not
significantly injured by the appellant’s failure to timely file a brief. TEX. R. APP. P.
38.8(a)(1). However, the Texas Supreme Court has “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 v. Dorner, 959 S.W.2d 615, 616-17 (Tex. 1997). Thus, appellant’s
counsel’s explanation is reasonable because it was neither deliberate nor intentional
noncompliance. See TEX. R. APP. P. 38.8(a)(1); Hone v. Hanafin, 104 S.W.3d 884, 887
(Tex. 2003) (per curiam). Furthermore, the appellee is not significantly injured because
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appellant timely filed his motion for rehearing while attaching his brief. See TEX. R. APP.
P. 38.8(a)(1), 49.1.
Accordingly, we grant the appellant’s motion for rehearing construed as a motion
to reinstate the appeal, reinstate the appeal, withdraw this Court’s May 8, 2014
Memorandum Opinion and Judgment, and direct the Clerk of this Court to accept
appellant’s brief for filing. See TEX. R. APP. P. 49.3. Appellee’s brief, if any, must be
filed within 30 days from the date of this order. See id.; TEX. R. APP. P. 2, 38.6(b). We
dismiss all other pending motions as moot.
It is so ORDERED.
Judge’s signature:/s/ Evelyn V. Keyes
Acting for the Court
Panel consists of: Justices Keyes, Bland, and Brown
Date: August 19, 2014
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