Cantu v. Trevino
| Decision Date | 24 September 2020 |
| Docket Number | NUMBER 13-20-00299-CV |
| Parties | MARK A. CANTU, Appellant, v. EMMA PEREZ TREVINO, CARLOS SANCHEZ, THE MCALLEN MONITOR, MARCI CALTABIANO-PONCE, VALLEY MORNING STAR, AND AIM MEDIA TEXAS, LLC, Appellees. |
| Court | Texas Court of Appeals |
On appeal from the 92nd District Court of Hidalgo County, Texas
Before Justices Benavides, Longoria, and Tijerina
Appellant Mark A. Cantu attempts to appeal a final judgment for attorneys' fees and costs rendered in favor of appellees, Emma Perez Trevino, Carlos Sanchez, The McAllen Monitor, Marci Caltabiano-Ponce, Valley Morning Star, and AIM Media Texas, LLC. The underlying case has previously been the subject of an original proceeding and an appeal. See In re Trevino, No. 13-18-00080-CV, 2018 WL 1736927, at *2 () (mem. op.); Trevino v. Cantu, No. 13-16-00109-CV, 2017 WL 1056404, at *1 (Tex. App.—Corpus Christi-Edinburg, Feb. 2, 2017, no pet.) (mem. op.). Concluding that Cantu's notice of appeal was untimely, we dismiss this appeal for want of jurisdiction.
In 2017, this Court reversed the trial court's denial of appellees' motions to dismiss the underlying case under the Texas Citizens Participation Act (TCPA). See Trevino, 2017 WL 1056404, at *1-5; see also TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001-.011 (codifying the TCPA); In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015) (orig. proceeding) ( that the purpose of the TCPA is to protect "citizens who petition or speak on matters of public concern from retaliatory lawsuits that seek to intimidate or silence them"). We remanded the case for further proceedings consistent with our opinion pertaining to the TCPA's award of court costs and reasonable attorney's fees. See Trevino, 2017 WL 1056404, at *5 . On remand, on March 2, 2020, the trial court signed a "Final Judgment" in this case. The judgment states that:
The trial court's final judgment awarded appellees their attorney's fees, costs, and conditional appellate fees.
On March 4, 2020, Cantu filed a "Request for Findings of Fact and Conclusions of Law." The record before this Court does not indicate whether Cantu pursued this request. See TEX. R. CIV. P. 296.
On June 19, 2020, Cantu filed a "Notice of Appeal and Motion to Abate." Cantu asserted that the trial court had signed a final judgment awarding attorneys' fees, costs and expenses of approximately $120,383.00; however, Cantu "had not received the Order Setting Hearing" and would be filing a motion for reconsideration. Cantu also moved to abate the appeal because a new judge had been assigned to the case, and the new judge "can enter into a scheduling order."
On July 15, 2020, the Clerk of this Court notified Cantu that it appeared that the appeal was not timely perfected. See TEX. R. APP. P. 37.1, 42.3. The Clerk advised Cantu that the appeal would be dismissed if the defect was not corrected within ten days from the date of receipt of the Court's directive.
On July 22, 2020, Cantu filed a "Motion to Abate Ruling or Alternatively, Motion to Retain Appeal." In this motion, Cantu asserted that the trial court judge had signed a final judgment on March 2, 2020 and that he had timely filed a motion for reconsideration on March 13, 2020. Cantu asserted that, during the intervening period, the trial court judge had recused himself; the Presiding Judge of the Fifth Administrative Judicial Region had assigned another judge to the case; Cantu had objected to the new judge; and thePresiding Judge of the Fifth Administrative Judicial Region had subsequently appointed the Honorable Joel Johnson to preside over the case. Cantu asserted that Judge Johnson had scheduled a hearing on August 14, 2020 to determine (1) whether the court still possessed plenary jurisdiction over the case, and (2) whether Cantu's motion for reconsideration should be granted. Cantu requested that this Court defer making a determination regarding whether his appeal was timely until Judge Johnson had ruled on Cantu's motion for reconsideration, or alternatively, that this Court grant Cantu an extension of time to file his notice of appeal. Cantu asserted that the recusal of the original judge and subsequent judicial appointments affected his appellate deadlines and his "miscalculation" of the appellate deadline to file his notice of appeal constituted a reasonable excuse to grant an extension of time:
As grounds thereof, [Cantu] miscalculated his appellate deadline. The deadline to file the notice of appeal was June 1, 2020. Unfortunately, [Cantu], who is acting pro se, is currently suffering from high ammonia levels in his bloodstream, which causes him to be unable to think or calculate clearly. (In laymen's terms, he acts loopey [sic].) Such medical problems have been compounded by the current Covid 19 pandemic; the required mask limits the oxygen which reaches his system. Accordingly, he calculated the deadline for filing his notice of appeal 120 days after the judgment was signed, instead of 90 days after the judgment was signed. [Cantu] now realizes that his notice of appeal was due 90 days after the judgment was filed, with an additional fifteen-day window for filing a motion for extension of time, i.e. June 16, 2020. His notice of appeal was filed on June 19, 2020, and so he is requesting an eighteen-day extension.
Cantu further argued that the Texas Supreme Court's emergency orders pertaining to the Covid-19 pandemic provide this Court with "the ability to suspend all deadlines, including the deadline to file a motion for extension of time."
On July 28, 2020, appellees filed their response to Cantu's "Motion to Abate Ruling or Alternatively, Motion to Retain Appeal." The appellees asserted that the final judgmentwas no longer subject to appeal and Cantu's failure to timely file a notice of appeal was incurable. They alleged that the supreme court's emergency orders lack any provision that extends the plenary jurisdiction of the trial court or this Court, and that the emergency orders expressly state that they do not extend the deadlines for appeal. According to appellees, the deadline for filing Cantu's notice of appeal was June 1, 2020, the "absolute" deadline by motion for extension of time was June 16, 2020, and Cantu did not file his notice of appeal until June 19, 2020. Appellees thus assert that we lack discretion to extend the appellate deadlines in this case and they request that we dismiss this appeal.
On July 30, 2020, Cantu filed a reply to appellees' response. Cantu asserted that, pursuant to the emergency orders, he filed his appeal "only three days late," that he has appropriately requested relief from this Court, and such relief should be "generously" granted.
On August 17, 2020, appellees filed a "Notice of the Trial Court's Order on Jurisdiction" and provided this Court with the copy of the order regarding jurisdiction signed by Judge Johnson. The order is entitled "Order denying Post-Judgment Motions for Lack of Jurisdiction." The order states:
Appellees asserted that the trial court's findings confirm that Cantu's notice of appeal was untimely. They asserted that because the judgment was signed on March 2, the deadline for filing his notice of appeal was Monday, June 1, 2020. Appellees argued that the Texas Rules of Appellate Procedure allowed Cantu an additional fifteen days to file a late notice of appeal if he filed a motion for extension of time providing a reasonable explanation for the late filing. TEX. R. APP. P. 26.3. Appellees thus contended that the final deadline for Cantu to file a...
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