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Grand Prairie Indep. Sch. Dist. v. Southern Parts Imports, Inc.

Supreme Court of Texas
Sep 11, 1991
813 S.W.2d 499 (Tex. 1991)
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Summary

holding that an appellate court may not dismiss an appeal when the appellant filed the wrong instrument required to perfect the appeal without giving the appellant an opportunity to correct the error

Summary of this case from Verburgt v. Dorner
See 20 Summaries

Opinion

No. D-0848.

June 19, 1991. Rehearing Overruled September 11, 1991.

Appeal from the District Court No. 134, Dallas County, Leonard E. Hoffman, Jr., J.

Linda Tyson, Michael Kelly, Michael Jarrett, John Wright, Grand Prairie, for petitioners.

Maureen Armour, Phillip C. Umphres, Gary M. Pridavka, Robert D. Cohen, Harry J. Martin, Dallas, for respondents.

PER CURIAM.

This case presents the question whether a court of appeals may dismiss an appeal when the appellant files a notice of appeal, but should have filed an appeal bond, in order to perfect the appeal. The Grand Prairie Independent School District and the City of Grand Prairie timely filed a notice of appeal under Texas Rules of Appellate Procedure 40(a)(2). The court of appeals dismissed Grand Prairie Independent School District's appeal for want of jurisdiction and denied leave to file an appeal bond to reinstate the appeal. 803 S.W.2d 762, 764. We hold that the court of appeals erred in dismissing Grand Prairie Independent School District's appeal and remand this case to the court of appeals for further proceedings in accordance with this opinion. We affirm the court of appeals' judgment as to the City of Grand Prairie.

Any reference to a "Rule" refers to the Texas Rules of Appellate Procedure, unless otherwise noted.

This court has held that an appellant should be given an opportunity to amend a defective bond, a cash deposit in lieu of bond or an affidavit of inability before the court of appeals may dismiss the appeal. Woods Exploration Producing Co. v. Arkla Equip. Co., 528 S.W.2d 568, 569 (Tex. 1975) (deposit in lieu of bond); United Ass'n of Journeymen Apprentices v. Borden, 160 Tex. 203, 206, 328 S.W.2d 739, 741 (1959) (appeal bond); Commercial Credit Corp. v. Smith, 143 Tex. 612, 616, 187 S.W.2d 363, 365 (1945) (affidavit of inability to post bond). A court of appeals has jurisdiction over any appeal where the appellant files an instrument that "was filed in a bona fide attempt to invoke appellate court jurisdiction." Walker v. Blue Water Garden Apartments, 776 S.W.2d 578, 581 (Tex. 1989); see also Borden, 160 Tex. at 206, 328 S.W.2d at 741; Woods, 528 S.W.2d at 570.

Rule 46(f) follows this policy of liberally permitting appellants to amend appeal bonds and cash deposits in lieu of bonds. Rule 83 also incorporates this policy by providing that "an appeal [shall not be] dismissed for defects or irregularities in appellate procedure, either of form or substance, without allowing a reasonable time to correct or amend such defects or irregularities. . . ." This court applied Texas Rules of Civil Procedure 437, the predecessor to Rule 83, in holding that a court of appeals erred in dismissing an appeal "without the allowance of a reasonable time for correction of the defect. . . ." Commercial Credit, 143 Tex. at 616, 187 S.W.2d at 365. On the authority of Rule 83, we now extend our prior rulings and hold that a court of appeals may not dismiss an appeal when the appellant filed the wrong instrument required to perfect the appeal without giving the appellant an opportunity to correct the error. If the appellant timely files a document in a bona fide attempt to invoke the appellate court's jurisdiction, the court of appeals, on appellant's motion, must allow the appellant an opportunity to amend or refile the instrument required by law or our Rules to perfect the appeal.

Rule 46(f) provides in pertinent part: "On motion to dismiss an appeal or writ of error for a defect of substance or form in any bond or deposit given as security for costs, the appellate court may allow the filing of a new bond or the making of a new deposit in the trial court on such terms as the appellate court may prescribe."

See Walker, 776 S.W.2d at 581 n. 7.

To the extent that the following cases conflict with our holding today, they are disapproved. Eagle Life Ins. Co. v. Hernandez, 743 S.W.2d 671 (Tex.App. — El Paso 1987, writ denied) (per curiam); Plano Indep. School Dist. v. Oake, 682 S.W.2d 359 (Tex.App. — Dallas 1984), rev'd on other grounds, 692 S.W.2d 454 (Tex. 1985); Marshall v. Brown, 635 S.W.2d 578 (Tex.App. — Amarillo 1982, writ ref'd n.r.e.).

Pursuant to Rule 170, a majority of this court grants petitioners' application for writ of error and, without hearing oral argument, reverses the judgment of the court of appeals dismissing Grand Prairie Independent School District's appeal. We affirm the remaining portions of the court of appeals' judgment with respect to the City of Grand Prairie. We remand the case to the court of appeals for consideration of the merits of the Grand Prairie Independent School District's appeal.

Summaries of

Grand Prairie Indep. Sch. Dist. v. Southern Parts Imports, Inc.

Supreme Court of Texas
Sep 11, 1991
813 S.W.2d 499 (Tex. 1991)

holding that an appellate court may not dismiss an appeal when the appellant filed the wrong instrument required to perfect the appeal without giving the appellant an opportunity to correct the error

Summary of this case from Verburgt v. Dorner

holding that the filing of a notice of appeal rather than a cost bond under the former rules sufficed as a bona fide attempt to appeal

Summary of this case from Cisneros v. Cisneros

holding that a court of appeals may not dismiss an appeal for filing the wrong instrument without providing an opportunity to amend when appellant has made a timely bona fide attempt to invoke our jurisdiction

Summary of this case from Laird v. Houston

holding that court of appeals must give appellant filing improper document in bona fide effort to perfect an appeal an opportunity to correct error by filing correct instrument

Summary of this case from Gregorian v. Ewell

holding notice of appeal filed when not authorized was a bona fide attempt to invoke appellate jurisdiction

Summary of this case from Chavez v. Housing Authority of City of El Paso

holding that a notice of appeal filed when an appeal bond is required to perfect is a bona fide attempt to invoke appellate jurisdiction, and that the court of appeals' dismissal was improper without first affording an opportunity to correct the defective perfection of appeal

Summary of this case from Restrepo v. First National Bank of Dona Ana County

concluding that “[i]f the appellant timely files a document in a bona fide attempt to invoke the appellate court's jurisdiction, the court of appeals, on appellant's motion, must allow the appellant an opportunity to amend or refile the instrument required by law or our Rules to perfect the appeal”

Summary of this case from McLean v. Livingston

In Grand Prairie, we held that a court of appeals may not dismiss an appeal in which the appellant filed the wrong instrument required to perfect the appeal without giving the appellant an opportunity to correct the error, as long as the instrument was timely filed in a bona fide attempt to invoke the appellate court's jurisdiction.

Summary of this case from In re K.A.F

dismissing appeal is improper "[i]f the appellant timely files a document in a bona fide attempt to invoke the appellate court's jurisdiction, [unless] the court of appeals, . . . allow the appellant an opportunity to amend or refile the instrument . . . to perfect the appeal"

Summary of this case from Maxfield v. Terry

dismissing appeal is improper if appellant timely files document in bona fide attempt to invoke the appellate court's jurisdiction

Summary of this case from Tex. G & S Invs., Inc. v. Constellation Newenergy, Inc.

In Grand Prairie, the supreme court held that an appeal may not be dismissed if appellant filed the wrong instrument required to perfect the appeal without giving the appellant an opportunity to correct the error, as long as the instrument was timely filed in a bona fide attempt to invoke the appellate court's jurisdiction.

Summary of this case from In re Guardianship Hester

applying the prior version of the appellate rules, which made the cost bond rather than a notice of appeal the perfecting instrument, and holding that the court of appeals must give appellant filing an improper document in a bona fide effort to perfect an appeal an opportunity to correct the error by filing the correct instrument

Summary of this case from Cisneros v. Cisneros

In Grand Prairie, the Court held that an appellant who timely filed a notice of appeal, but who should have filed an appeal bond, was entitled to amend or refile by filing a cost bond or making a cash deposit.

Summary of this case from Foster v. Williams

In Grand Prairie, the court held that an appellant who timely filed a notice of appeal but who should have filed an appeal bond was entitled to amend or refile by filing a cost bond or cash deposit.

Summary of this case from Greenspan v. Ross

In Grand Prairie, the appellant filed a notice of appeal rather than a cost bond in an attempt to invoke jurisdiction in the appellate court.

Summary of this case from State v. Organic Composting Resourc

dismissing appeal is improper if the appellant timely files a document in a bona fide attempt to invoke the appellate court's jurisdiction, unless the court of appeals allows the appellant an opportunity to amend or refile the instrument to perfect the appeal

Summary of this case from Birmingham Fire v. Am. Nat. Fire

In Grand Prairie Indep. Sch. Dist. v. Southern Parts Imports, Inc., 813 S.W.2d 499, 499 (Tex. 1991) (per curiam), the supreme court addressed the issue of whether a court of appeals may dismiss an appeal when an appellant erroneously files a notice of appeal rather than an appeal bond.

Summary of this case from Griffin v. Office of the Attorney General

In Grand Prairie Independent School District v. Southern Parts Imports, Inc., 813 S.W.2d 499, 500 (Tex. 1991), and Linwood v. NCNB Texas, 885 S.W.2d 102, 103 (Tex. 1994), the supreme court broke new ground by holding that an appellant could amend an ineffective perfecting instrument by filing a different instrument.

Summary of this case from Aguirre v. Texas Department of Protective & Regulatory Services

In Grand Prairie, the court held that an appellant who timely filed a notice of appeal but who should have filed an appeal bond was entitled to amend or refile by filing a cost bond or cash deposit.

Summary of this case from Aguirre v. Texas Department of Protective & Regulatory Services

In Grand Prairie, the school district timely filed a notice of appeal pursuant to Texas Rules of Appellant Procedure 40(a)(2). While school districts are generally required to give security for costs in order to perfect appeal, they are exempt from the bond requirement if the appeal is founded on a suit to collect delinquent taxes.

Summary of this case from Wilcox v. Seelbinder
Case details for

Grand Prairie Indep. Sch. Dist. v. Southern Parts Imports, Inc.

Case Details

Full title:GRAND PRAIRIE INDEPENDENT SCHOOL DISTRICT and City of Grand Prairie…

Court:Supreme Court of Texas

Date published: Sep 11, 1991

Citations

813 S.W.2d 499 (Tex. 1991)

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