Opinion
No. 08-02-00379-CV
May 15, 2003.
Appeal from County Court at Law No. 7 of El Paso County, Texas (TC# 2001-3883).
Before Panel No. 2: BARAJAS, C.J., McCLURE, and CHEW, JJ.
MEMORANDUM OPINION ON MOTION
Pending before the Court is the motion of Appellee, Jose Luis Rodriguez, to dismiss this appeal because Appellants, Jaime and Blanca Garcia, filed a defective notice of appeal. The motion to dismiss is denied.
UNDERLYING FACTS
Jose Luis Rodriguez filed a petition to quiet title against several defendants, including Jaime Garcia. The trial court entered a default judgment against Jaime Garcia on April 22, 2002 when he failed to answer or appear for trial. Jaime and Blanca Garcia, represented by counsel, filed a motion for new trial on May 10, 2002 alleging that their failure to appear was the result of accident or mistake, and they asserted the existence of a meritorious defense. On July 1, 2002, the trial court granted the motion for new trial and set the case for trial on August 1, 2002. The Garcias and their attorney failed to appear for trial on August 1, 2002 when the trial court called the case for trial. Consequently, in an order dated August 9, 2002, the trial court set aside its prior order granting the motion for new trial and reinstated the prior default judgment. The Garcias filed a notice of appeal on August 23, 2002. In that notice of appeal, the Garcias state they are appealing from an order dated August 1, 2002. Both the Garcias and Rodriguez have filed their briefs on appeal.
Blanca Garcia was not a party to the April 22, 2002 judgment. Rodriguez raises an issue in his reply brief questioning Blanca Garcia's standing to appeal. It is unnecessary to address that issue in ruling on Rodriguez's motion to dismiss.
MOTION TO DISMISS
Rodriguez requests that the appeal be dismissed because the Garcias' notice of appeal fails to accurately identify the order from which they appeal. According to Rodriguez, dismissal is mandatory because the notice of appeal does not comply with Rule 25.1(d)(2)'s requirement that it "state the date of the judgment or order appealed from." See Tex.R.App.P. 25.1(d)(2). Further, he argues that the notice of appeal does not constitute a bona fide attempt to invoke the jurisdiction of this Court and the Garcias should not be permitted to amend the notice of appeal. We disagree with both arguments.
In his motion, Rodriguez erroneously relies on Rule 42.4 of the Texas Rules of Appellate Procedure which only applies to involuntary dismissal in criminal cases. See Tex.R.App.P. 42.4. We assume he intended to rely on Tex.R.App.P. 42.3.
We will address the jurisdictional argument first. The Texas Supreme Court has consistently held that a court of appeals has jurisdiction over an appeal when the appellant files an instrument that is "a bona fide attempt to invoke appellate court jurisdiction." Grand Prairie Independent School District v. Southern Parts Imports, Inc., 813 S.W.2d 499, 500 (Tex. 1991) (per curiam). The factor which determines whether jurisdiction has been conferred on the appellate court is not the form or substance of the perfecting instrument but whether the instrument was filed in a bona fide attempt to invoke appellate court jurisdiction. See Walker v. Blue Water Garden Apartments, 776 S.W.2d 578, 581 (Tex. 1989).
In the notice of appeal, the Garcias erroneously recite the date of the order they seek to appeal as August 1, 2002, the date on which the trial court called the case for trial and the Garcias failed to appear, rather than August 9, 2002, the date on which the trial court actually signed the order setting aside its prior order granting the motion for new trial and reinstating the prior default judgment. While the notice of appeal should have recited the correct date of the order, it is clear from the clerk's record that the Garcias seek to appeal the August 9, 2002 order. Therefore, we conclude that the Garcias filed the notice of appeal in a bona fide attempt to invoke this Court's jurisdiction. See City of San Antonio v. Rodriguez, 828 S.W.2d 417, 418 (Tex. 1992) (notation of wrong cause number on notice of appeal did not defeat appellate court's jurisdiction).
With respect to Rodriguez's argument that dismissal is mandatory, Rodriguez is correct that Rule 25.1(d)(2) requires that the notice of appeal state the date of the judgment or appealable order. Although Rule 42.3(c) permits dismissal of an appeal where the appellant has failed to comply with a requirement of the rules, a court order, or a notice from the clerk requiring a response or other action within a specified time, the rules do not require dismissal when an appellant fails to comply with Rule 25.1(d). Dismissal pursuant to Rule 42.3(c) is discretionary with the appellate court. The Texas Supreme Court has held that the Rules of Appellate Procedure should be interpreted liberally to allow appellate courts to reach the merits of an appeal whenever possible. Jones v. Stayman, 747 S.W.2d 369, 370 (Tex. 1987); Foster v. Williams, 74 S.W.3d 200, 203 (Tex.App.-Texarkana 2002, pet. denied). To further that principle, appellants have consistently been given broad latitude to amend their perfecting documents. See Foster, 74 S.W.3d at 203 (and cases cited therein). The ability to amend extends to the notice of appeal. City of San Antonio v. Rodriguez, 828 S.W.2d at 418 (notice of appeal could be amended to show correct cause number). From our review of the briefs filed by the Garcias and Rodriguez, there is no confusion as to which order the Garcias challenge on appeal. Consequently, we will not require the Garcias to amend their notice of appeal as it would serve no useful purpose. Rodriguez's motion to dismiss is denied.
We note that Rodriguez is incorrect in his assertion that the rules of appellate procedure do not permit amendment of a notice of appeal after the appellant's brief has been filed. Rule 25.1(f) specifically allows amendment of the notice of appeal on leave of court after the appellant's brief is filed. See Tex.R.App.P. 25.1(f).