State Dept. of Highways and Public Transp. v. Douglas
| Decision Date | 08 February 1979 |
| Docket Number | No. 1461,1461 |
| Citation | 577 S.W.2d 559 |
| Parties | STATE DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION of Texas, Appellant, v. Linda DOUGLAS et al., Appellees. |
| Court | Texas Court of Appeals |
Two motions are pending before the Court in this case. State Department of Highways and Public Transportation of Texas, appellant, has filed a third motion to extend time to file the transcript and the statement of facts, requesting that the time be extended to February 8, 1979. Appellees have filed a motion to dismiss the appeal for lack of jurisdiction. Both appellant and appellees have filed memorandums in support of their positions concerning the latter motion. Appellees urge this Court to dismiss the appeal because appellant filed to file a proper notice of appeal as required by Rule 354(c), T.R.C.P.
Since the Texas Rules of Civil Procedure were amended, effective January 1, 1976, parties wishing to appeal must file a cost bond (or cash in lieu thereof) pursuant to Rule 354(a) and (b), and Rule 356, T.R.C.P., within 30 days after rendition of judgment or the overruling of a motion for new trial unless they are exempt from filing such a bond. Parties who are exempt by the statute and who wish to appeal, need not file such a bond or cash in lieu thereof, but must file a notice of appeal as required by Rule 354(c). The appeal, therefore, is not perfected until the bond or notice, whichever is appropriate, is timely filed. Rule 363.
In the case before us, the State Department of Highways and Public Transportation of Texas is exempt from filing an appeal bond. It was therefore necessary for it to timely file a notice of appeal in order to invoke this Court's jurisdiction in this appeal.
Appellant states that oral notice of appeal was given in open court on July 27, 1978, after its motion for new trial was overruled. It acquiesces that oral notice may no longer be sufficient, but contends that written notice was also given.
The viability of an oral notice of appeal has recently been decided in City of San Antonio v. Rudewick, 567 S.W.2d 38 (Tex.Civ.App. San Antonio 1978, writ ref'd n. r. e.). In that case, the court discussed the interrelationship between Rule 353 prior to the 1976 amendments to the Rules of Civil Procedure and Rule 354(c) following the amendments, concluding, "there is no longer authorization for an oral notice of appeal given in open court and embodied in the judgment or order overruling motion for new trial or other minutes of the court." Rudewick at 39. We agree with the court's reasoning and conclusion in Rudewick.
The sufficiency of a written notice to constitute an adequate notice of appeal under new Rule 354(c) is judged by the same standards as applied to former Rule 353(b). As stated by our Supreme Court, "Under the rules as amended on January 1, 1976, only the appellant who is not required to give a bond for costs on appeal is required to give notice of appeal; and under Rule 354(c) the contents of the notice are precisely what was formerly required by Rule 353 . . .," Texas State Board of Pharmacy v. Gibson's Discount Centers, Inc., 539 S.W.2d 141, 142 (Tex.Sup.1976).
We therefore turn to the writing which appellant identifies as a written notice of appeal. This consists of a letter dated August 25, 1978, addressed to the District Clerk of Bee County. We note at the outset that this letter was not designated to be included in the transcript. When the Clerk of this Court brought to our attention the apparent lack of a notice of appeal, appellant was requested to provide evidence of a notice if such existed. He thereafter directed the District Clerk to prepare a supplemental transcript containing the letter in question.
The Clerk's file mark on the letter shows that it was filed September 5, 1978. The record also reflects that appellant's amended motion for new trial was overruled July 27, 1978. Therefore, the 30-day period during which appellant could perfect its appeal by filing a notice of appeal expired August 26. However, since August 26 fell on Saturday, the due date was automatically extended to Monday, August 28, 1978, under Rule 4, T.R.C.P. The file date of September 5 was within the 10-day mailing rule of Rule 5, T.R.C.P.
Appellant's attorney has filed an affidavit in which he states that he personally mailed the written notice of appeal on August 5, 1978. Appellees contest this statement, claiming the length of the delay shows the letter must have been mailed later. If timeliness is the critical factor in our decision, this Court has fact-finding power to resolve a dispute concerning date of mailing. See Tex.Rev.Civ.Stat.Ann. art. 1822 (1964); Alexander v. Alexander, 539 S.W.2d 347 (Tex.Sup.1976); Texas Rubber Supply, Inc. v. Jetslide International, Inc., 466 S.W.2d 279 (Tex.Sup.1971); Glidden Co. v. Aetna Casualty and Surety Co., 155 Tex. 591, 291 S.W.2d 315 (1956); Brown v. Brown, 444 S.W.2d 837 (Tex.Civ.App. Beaumont 1969, writ dism'd). Also see Davies v. Massey, 561 S.W.2d 799 (Tex.Sup.1978) regarding the effect of an affidavit of timely mailing which was uncontroverted.
However, the dispositive issue here is the sufficiency of the letter to constitute a notice of appeal. Rule 354(c) states that:
The aforesaid letter clearly includes the number and style of the case and the court in which the case is pending. It is therefore the final element of sufficiency which we address.
The first two paragraphs of appellant's letter dated August 25, 1978, describe several instruments being transmitted to the Clerk along with the letter, and designate that these instruments are to be included in the transcript. Appellant's first motion for extension of time to file the record in this Court stated that the transcript was formally requested on August 25, 1978. There is nothing in the record to indicate that the formal request was anything other than the letter dated August 25.
Appellant relies on the third paragraph of the letter as constituting a valid notice of appeal. The third paragraph contains one sentence and is copied in its entirety:
"I anticipate a motion in the Court of Civil Appeals for an extension of time under Rule 21c, Texas Rules of Civil Procedure, may be necessary as to the filing in that court of both Transcript and Statement of Facts since Mr. Johnson, the court reporter, was replaced there and has moved to San Angelo after this trial and has with him there some of the exhibits in this case as well of course as his notes of these proceedings and also, since notice of appeal was first given in open court July 27, 1978 in this case after the court overruled Defendant's, State Department of Highways and Public Transportation's (now Appellant's) Motion for New Trial."
The last portion of the sentence contains the purported written notice of appeal. It is certainly not a clear or direct statement that appellant desires to appeal from the judgment. Nevertheless, we must evaluate its intended meaning in order to determine its sufficiency. The most obvious meaning of the entire sentence is to apprise the District Clerk that the appellant anticipates filing a motion in the Court of Civil Appeals to extend time to file the record. Such a motion is of concern to the Clerk because the Clerk's deadline for preparing the transcript would be directly affected by the granting or denial of the motion. The reasons cited by appellant for the necessity of additional time are of no direct concern to the...
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Dallas County v. Sweitzer
...754 S.W.2d 797, 799 (Tex.App.--El Paso 1988, writ denied) (op. on reh'g); State Dept. of Highways and Public Transportation v. Douglas, 577 S.W.2d 559 (Tex.Civ.App.--Corpus Christi 1979, writ ref'd n.r.e.). A technical application of the rules should not defeat the right to appeal. Sanders ......
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...construction, particularly as they relate to filing notice of appeal. State Department Of Highways And Public Transportation v. Douglas, 577 S.W.2d 559 (Tex.Civ.App.--Corpus Christi 1979, writ ref'd n.r.e.). The right to appeal is constitutional and should not be defeated on a technical con......
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