Opinion

Opinion issued April 19, 2012

In The

Court of

Appeals

For The

First District

of Texas

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NO. 01-10-00776-CV

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Brown Mechanical Services, Inc. , Appellant

V.

The Mountbatten Surety

Company, Inc., American Surety Company, Skip Clift d/b/a Innovative Insurance

Agency, and Kevin Clift , Appellees

On Appeal from the 11th District Court

Harris County, Texas

Trial Court Case No. 0611121

O P I N I O N

Appellant,

Brown Mechanical Services, Inc. (“Brown”), attempts to appeal from the trial

court’s order dismissing its bill of review proceeding against appellees,

Mountbatten Surety Company, Inc., American Surety Company, Skip Clift d/b/a Innovative Insurance Agency, and

Kevin Clift (collectively, “Mountbatten”), for want of prosecution. In three issues, Brown argues that the trial

court abused its discretion (1) in dismissing the case for want of prosecution;

(2) in failing to hold a hearing on its motion to reinstate; and (3) in failing

to allow it to have its day in court.

We conclude that Brown’s notice of

appeal is untimely and that, therefore, this appeal must be dismissed for lack

of jurisdiction.

Background

Brown filed its petition for a bill of review on February

21, 2006, seeking to vacate an agreed judgment between it and Mountbatten

entered on March 15, 2004. There is no

indication in the record that Brown served Mountbatten with this petition, and

on January 22, 2007, the trial court notified Brown of its intent to dismiss

the case on June 29, 2007. On that day, June

29, 2007, Brown filed a motion to retain, explaining that it was ready to go

forward with the prosecution of the case.

No further action was taken on the case until February 17, 2010, when

the trial court notified the parties that the disposition deadline for the case

was March 15, 2010 and that, if the case were not set and heard before that

date, it would be dismissed for want of prosecution.

On March 15, 2010, Brown filed a second motion to

retain. The trial court responded on

March 16, 2010 by providing a second disposition deadline of April 19, 2010 and

again notifying the parties that the case would be dismissed for want of

prosecution if the matter had not been set and heard by that date. On April 14, 2010, Brown filed an amended

petition for bill of review and served Mountbatten on April 26, 2010. On May 25, 2010, the trial court dismissed

the case, stating, “For failure to comply with the Notice Dates 03-16-2010/TRCP

165A this case is ordered DISMISSED FOR WANT OF PROSECUTION.”

On June 24, 2010, Brown filed a motion to reinstate,arguing

that it had experienced difficulty “effecting process on [Mountbatten],” that

its failure to act prior to dismissal was the result of its “attorney who

misfiled the notice of intent to dismiss,” and that it was prepared to “go

forward with further preparation, prosecution and the trial of this

cause.” The trial court held a hearing on

August 2, 2010. Brown did not obtain or

file a reporter’s record of this hearing.

Although the docket sheet reflected that the trial court denied the

motion to reinstate on that date, the record does not contain a written order

denying the motion. Thus, the motion to

reinstate was overruled by operation of law.

Brown filed its notice of appeal on September 8, 2010,

stating that the trial court held a hearing on the motion to reinstate on

August 2, 2010, that the trial court did not sign a written order on that

motion, and that Brown wished to appeal.

Analysis

This Court’s review of the case revealed that Brown’s

notice of appeal was untimely.

Generally, a notice of appeal is due within thirty days after the

judgment is signed. See Tex. R. App. P .

26.1. The deadline to file a notice of appeal

is extended ninety days after the date the judgment is signed if any party

timely files a motion for new trial, motion to modify the judgment, motion to

reinstate, or, under certain circumstances, a request for findings of fact and

conclusions of law. See Tex. R. App. P.

26.1(a). To be considered timely, a

motion to reinstate must be filed within thirty days after the order of

dismissal is signed. Tex. R. Civ. P . 165a(3).

We may extend the time to file the notice of appeal,

however, if, within fifteen days after the deadline to file the notice of

appeal, the appellant properly files a motion to extend time. Tex.

R. App. P. 26.3, 10.5(b)(1)–(2). A

motion to extend time is necessarily implied when an appellant, acting in good

faith, files a notice of appeal beyond the time allowed by Rule 26.1, but

within the fifteen-day extension period provided by Rule 26.3. See Tex. R. App. P . 26.1, 26.3; Verburgt v. Dorner , 959 S.W.2d 615, 617

(Tex. 1997). The appellant must, however, offer a reasonable explanation for

failing to file the notice of appeal in a timely manner. See Tex. R. App. P. 10.5(b)(1)(C), 26.3; Jones v. City of Houston , 976 S.W.2d

676, 677 (Tex. 1998).

Here, the trial court signed the final judgment on Brown’s

petition for bill of review on May 25, 2010, dismissing Brown’s case for want

of prosecution. Thus, Brown’s motion to

reinstate its bill of review was due by June 24, 2010. The record shows that Brown timely filed its

motion to reinstate on June 24, 2010.

The motion was heard on August 2, 2010, but no written order was

signed. Therefore, Brown’s motion to

reinstate was overruled by operation of law on August 23, 2010, seventy-five

days after the judgment dismissing his bill of review was signed. See Tex. R. Civ. P . 165a(3) (providing that

if “a motion for reinstatement is not decided by signed written order within

seventy-five days after the judgment is signed, or, within such other time as

may be allowed by Rule 306a, the motion shall be deemed overruled by operation

of law”); Tex. R. Civ. P. 306a(4)

(providing that, in some circumstances, deadlines for filing post-judgment

motions will run from date party received notice of judgment).

However, Brown did not file a notice of appeal until

September 8, 2010, which was sixteen days after the notice of appeal was due

and one day after the fifteen-day extension of time permitted by Rule 26.3 had

run. Brown’s notice of appeal was, therefore,

untimely, even with the extended deadline afforded by Rule 26.1(a) when a

motion to reinstate is filed. See Tex.

R. App. P. 26.1.

Because the failure to file a timely notice of appeal is

jurisdictional, the Texas Rules of Appellate Procedure provide that a motion to

extend time is necessarily implied if the appellant files its notice of appeal

within the fifteen-day extension period provided by Rule 26.3, so long as the

appellant complies with Rule 10.5(b) by, inter

alia , providing a reasonable explanation for the late filing. See Tex.

R. App. P. 26.3, 10.5(b); Jones ,

976 S.W.2d at 677 ; Verburgt , 959

S.W.2d at 617 . Brown, however, neither

filed its notice of appeal within the fifteen-day grace period nor provided an

explanation for its late filing.

On December 5, 2011, this Court sent Brown a notice

informing it that it did not appear that we had jurisdiction over this appeal

and that we would dismiss this case for want of jurisdiction unless it provided

some evidence that we did have jurisdiction.

Brown responded, arguing that its notice of appeal was timely because

its motion to reinstate was overruled by operation of law seventy-five days

after the date it received notice of the dismissal for want of prosecution,

and, thus, the notice of appeal was not due until thirty days after the motion

to reinstate was overruled, or 105 days from the date it received the notice of

dismissal.

Brown cited no authority to support its contention that

the deadline to file the notice of appeal was thirty days from the date its

motion to reinstate was overruled, and its statement of the law is incorrect. Contrary to Brown’s assertion, the deadline

for filing a notice of appeal runs from the date of the trial court’s dismissal

order, not the date the trial court rules on a motion to reinstate. Weik v.

Second Baptist Church of Houston , 988 S.W.2d 437, 438 (Tex. App.—Houston

[1st Dist.] 1999, pet. denied); Hosey v.

Cnty. of Victoria , 832 S.W.2d 701, 703 (Tex. App.—Corpus Christi 1992, no

writ); see also Tex. R. App. P. 26.1(a)(3) (providing

that notice of appeal is due within ninety days of date judgment is signed when

timely motion to reinstate case is filed pursuant to Texas Rule of Civil

Procedure 165a).

Brown also argues that it

did not receive notice of the dismissal of the case until June 22, 2010 and

that the post-judgment deadlines should run from that date rather than from the date the judgment was signed. It cites Texas Rule of Civil Procedure

306a(4) to support this contention.

Paragraph 4 of Rule 306a provides that if “a party adversely affected

by” the signing of a judgment or appealable order does not receive the required

notice within twenty days,

then with respect to that party all the periods

mentioned in paragraph (1) [addressing time for filing post-judgment motions in

the trial court] shall begin on the date that such party or his attorney

received such notice or acquired actual knowledge of the signing, whichever

occurred first, but in no event shall such periods begin more than ninety days

after the original judgment or other appealable order was signed.

Tex. R. Civ. P . 306a(4). Rule

306a further provides:

In order to establish the application of paragraph (4)

of this rule, the party adversely affected is required to prove in the trial

court, on sworn motion and notice, the date on which the party or his attorney

first either received a notice of the judgment or acquired actual knowledge of

the signing and that this date was more than twenty days after the judgment was

signed.

Tex.

R. Civ. P. 306a(5). The record in

this case does not contain the sworn motion establishing the facts constituting

late notice required by Rule 306a(5), and thus Brown has failed to establish

the application of Rule 306a(4). See id. ; see also Tex. R. App. P .

4.2(a)–(b) (providing additional time to file notice appeal if, in accordance

with Rule 306a(5), appellant establishes facts constituting late notice).

We conclude that Brown has failed to satisfy the

jurisdictional requirements in Rules 26.1 and 26.3 that he either (1) timely

file a notice of appeal or (2) file a notice of appeal in the trial court

within fifteen days after the deadline for filing the notice of appeal and file

in this Court a motion that complies with Rule 10.5(b), including setting out

“the facts relied on to reasonably explain the need for an extension.” Tex.

R. App. P. 10.5(b), 26.1, 26.3.

We hold that this Court lacks jurisdiction over the

appeal. See Tex. R. App. P. 25.1,

26.1; Verburgt , 959 S.W.2d at

617 . Accordingly, we dismiss the appeal

for want of jurisdiction. See Tex.

R. App. P. 42.3(a), 43.2(f). [1] We dismiss all pending motions as moot.

Conclusion

We dismiss the appeal for want of jurisdiction. We dismiss all pending motions as moot.

Evelyn V. Keyes

Justice

Panel consists of Justices Keyes, Higley, and

Massengale.

[1] Mountbatten argues that, even if

Brown’s notice of appeal had been timely, its failure to obtain a reporter’s

record of the hearing on the motion to reinstate “makes it impossible to

establish that the trial court abused its discretion.” We agree. See

Villarreal v. San Antonio Truck & Equip. , 994 S.W.2d 628, 630 (Tex.

1999) (reviewing dismissal for want of prosecution for abuse of discretion); Cappetta v. Hermes , 222 S.W.3d 160, 164

(Tex. App.—San Antonio 2006, no pet.) (“We review an order denying a motion to

reinstate under an abuse of discretion standard.”) (citing Smith v. Babcock & Wilcox Constr. Co. , 913 S.W.2d 467, 468

(Tex. 1995) (per curiam)); see also

Nicholson v. Fifth Third Bank , 226 S.W.3d 581, 583 (Tex. App.—Houston [1st

Dist.] 2007, no pet.) (holding that it is appellant’s burden to bring forward

sufficient record to show error committed by trial court and that, in absence

of reporter’s record and findings of fact, we assume trial court heard sufficient

evidence to support its judgment);

Sandoval v. Comm’n for Lawyer Discipline , 25 S.W.3d 720, 722 (Tex.

App.—Houston [14th Dist.] 2000, pet. denied) (holding that court could not

determine whether trial court abused its discretion in sanctions ruling because

it did not receive reporter’s record of hearing and that courts “must presume

the omitted evidence would support the trial court’s sanction decision”)

(citing Christiansen v. Prezelski ,

782 S.W.2d 842, 843 (Tex. 1990) (per curiam)).

Mountbatten

further argues that the trial court properly dismissed the case for want of

prosecution and denied the motion to reinstate because Brown failed to

demonstrate due diligence or lack of conscious indifference. We agree with this contention as well. See Villarreal , 994 S.W.2d at 630

(holding that trial court may dismiss case for want of prosecution under Texas

Rule of Civil Procedure 165a for failure to appear for any hearing or trial of

which party had notice or for failure to dispose of case within time standards

promulgated by supreme court, or, after notice and opportunity to be heard,

under the court’s inherent power for failure to prosecute with due diligence); see also Tex. R. Civ. P. 165a(3) (trial court must reinstate case

dismissed for want of prosecution upon finding after hearing that “the failure

of the party or his attorney was not intentional or the result of conscious

indifference but was due to an accident or mistake or that the failure has been

otherwise reasonably explained”); Cappetta ,

222 S.W.3d at 166 (holding that Rule 165a(3)’s reinstatement provision should

apply to all dismissals for want of prosecution, including dismissal under

court’s inherent power); Brown v. Howeth

Invs., Inc. , 820 S.W.2d 900, 903 (Tex. App.—Houston [1st Dist.] 1991, writ

denied) (applying Rule 165a(3) standard to dismissal under court’s inherent

power and stating, “In exercising its discretion, the trial court may consider

the entire history of the cause.”).