Opinion
NUMBER 13-20-00053-CV
07-22-2020
MARIA GUERRERO, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF MARIA OTILIA ESTRADA, Appellant, v. AHMAD KARKOUTLY, M.D., Appellee.
On appeal from the 138th District Court of Cameron County, Texas.
ORDER
Before Chief Justice Contreras and Justices Benavides and Longoria
Order Per Curiam
Appellee Ahamad Karkoutly, M.D., has filed a motion to dismiss this appeal for want of prosecution. Appellant Maria Guerrero, individually and as representative of the estate of Maria Otilia Estrada, has filed a response to the motion to dismiss, and appellee has filed a reply thereto. After due consideration, we deny appellee's motion to dismiss this appeal.
I. BACKGROUND
On November 15, 2018, the trial court signed an "Order Granting Defendant Ahmad Karkoutly, M.D.'s Motion to Dismiss with Prejudice." On December 14, 2018, appellant filed a notice of appeal with the trial court. On January 24, 2020, more than one year later, her notice of appeal was finally forwarded to this Court. See TEX. R. APP. P. 25.1(f) ("The trial court clerk must immediately send a copy of the notice of appeal to the appellate court clerk and to the court reporter or court reporters responsible for preparing the reporter's record."). On January 27, 2020, the clerk's record was filed. On February 5, 2020, the appellant paid her fee for the notice of appeal. On February 6, 2020, appellant filed her docketing statement. On February 7, 2020, the reporter's record was filed. On March 3, 2020, appellee filed his motion to dismiss this appeal
In his motion to dismiss, appellee asserts that, from December 14, 2018, through January 24, 2020, appellant took no action to prosecute her appeal—that she did not request either the clerk's record or reporter's record to be filed, she paid no filing fees, and she made no effort to notify this Court of her desire to appeal. Appellant asserts that "[o]nly after [appellant] received a January 16, 2020 letter from the Cameron County District Clerk informing her that her notice of appeal had not been forwarded to the court of appeals, and inquiring as to whether she still wished to pursue her appeal, did she take any action." Based on the foregoing, appellee contends that
Plaintiff's consistent failure to diligently pursue her appeal should preclude her from pursuing it more than one year after the trial court ordered
dismissal of her case. While Plaintiff filed a timely Notice of Appeal with the Cameron County District Court in December 2018, she failed to take any other required action to pursue her appeal thereafter. Plaintiff failed to timely pay her requisite filing fee. Plaintiff failed to request a copy of the clerk's record and reporter's record. And she failed to pay either of the required fees in requesting those records. While the district clerk also failed to do its requisite duty to send a copy of the notice to this Court, Plaintiff should not be permitted to use this as an excuse to allow her appeal to languish indefinitely. The record is clear that Plaintiff made no effort to contact the appellate court or otherwise ensure that her appeal moved forward.(Internal citations omitted). Based on the foregoing, appellee contends that the appeal must be dismissed for want of prosecution because appellant failed to timely request and file the appellate record. Appellee asserts that allowing appellant to continue her appeal "rewards her utter lack of diligence in pursuing her case." Appellee further argues that dismissal of the appeal is required by the appellate rules and by the doctrine of laches.
Defendant should not be forced to further defend a case dismissed at the trial level after it sat idle for over a year. Indeed, Defendant has been in limbo, waiting for finality on the dismissal of the claims against him, since February 2017 when he filed his first appeal with this Court. Texas utilizes both statutes of limitations, as well as rules governing timely notice to the opposing party after a case is filed, to ensure that cases remain fresh and defendants are not subject to undue surprise and liability. Likewise, the firm appellate deadlines should prevent this case from going forward when the Plaintiff, herself, sat on the case without activity for over a year.
In response, appellant asserts that appellee seeks to dismiss the appeal "not for non-compliance with the Rules of Appellate Procedure but as after-the-fact punishment." She asserts, inter alia, that the trial court clerk has the duty to notify the court of appeals of a new appeal; that it was not her duty to request and file the clerk's record and the reporter's record was not actually required in this case, and that the "focus of the Rules is on uncured flaws, not cured ones."
Appellee subsequently filed a reply to appellant's response in which he asserts that appellant "plays fast and loose with the rules to misdirect from the controlling fact—for more than a year, she did nothing to advance her appeal" and instead she "passes the buck and solely blames the district clerk for her lack of diligence." Appellee generally reasserts his previous arguments and alleges, without evidentiary support, that the delay in prosecution of this appeal has caused him prejudice.
II. APPLICABLE LAW
It is abundantly clear that appellate courts have the discretion to dismiss appeals for want of prosecution when the appellant fails to comply with his or her obligations under the appellate rules. See, e.g., Serrano v. City Bank & Old Republic Nat'l Title Ins. Co., 535 S.W.3d 889, 891 (Tex. App.—El Paso 2016, no pet.) (dismissing an appeal when the appellant failed to file her brief by the deadline and gave no reasonable explanation for the failure); In re Matter of Marriage of Bowers, 479 S.W.3d 457, 457 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (dismissing an appeal when the appellant filed a deficient brief and failed to file a sufficient motion for extension of time to file an amended brief); In re C.L., 440 S.W.3d 68, 69 (Tex. App.—Waco 2012, no pet.) (dismissing an appeal when the trial court found that the appellant had abandoned the appeal); Head v. Chicory Media, LLC, 415 S.W.3d 559, 560 (Tex. App.—Texarkana 2013, no pet.) (dismissing an appeal when the appellant failed to file the appellate record); In re T.L.R., 391 S.W.3d 669, 669 (Tex. App.—Dallas 2013, no pet.) (dismissing an appeal when the appellant failed to pay for the clerk's record); In re M.A., 222 S.W.3d 670, 671-72 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (per curiam) (dismissing an appeal when the appellant failed to pay for the filing fee and record).
Nevertheless, the Texas Supreme Court has repeatedly and clearly held that appellate courts should reach the merits of an appeal whenever reasonably possible. See, e.g., Horton v. Stovall, 591 S.W.3d 567, 567 (Tex. 2019) (per curiam); Weeks Marine, Inc. v. Garza, 371 S.W.3d 157, 162 (Tex. 2012); Ditta v. Conte, 298 S.W.3d 187, 190 (Tex. 2009); Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008) (per curiam); Republic Underwriters Ins. Co. v. Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex. 2004); Verburgt v. Dorner, 959 S.W.2d 615, 616-17 (Tex. 1997). This is a "consistent" policy. Warwick Towers, 244 S.W.3d at 839. The supreme court has applied this doctrine on numerous occasions in various contexts. See, e.g., St. John Missionary Baptist Church v. Flakes, 595 S.W.3d 211, 214 (Tex. 2020) (per curiam) (concerning the adequacy of appellate briefing); Horton, 591 S.W.3d at 567-68) (regarding remediable record-citation errors in the appellant's brief); Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 480 (Tex. 2019) (regarding the broad construction of issues); Sweed v. Nye, 323 S.W.3d 873, 874 (Tex. 2010) (per curiam) (regarding a defective notice of appeal).
The concept of cure and correction is imbedded throughout the appellate rules, which require the courts to offer appellants numerous opportunities to correct any potential defects in the successful prosecution of their appeals. See, e.g., TEX. R. APP. P. 37.1 (requiring the appellate court clerk to notify the appellant of defects in a notice of appeal); id. R. 37.3(b) (requiring the court to provide the appellant "a reasonable opportunity to cure" the failure to file the clerk's record even where the failure was "due to appellant's fault"); id. R. 37.3(c) (requiring the court to provide the appellant "notice and a reasonable opportunity to cure" the failure to file the reporter's record even where the failure was "due to appellant's fault"); id. R. 38.9 (requiring the court to construe briefing rules liberally); id. R. 42.3 (allowing the court to dismiss appeals in civil cases on any party's motion—"or on its own initiative after giving ten days' notice to all parties"); id. R. 44.3 ("A court of appeals must not affirm or reverse a judgment or dismiss an appeal for formal defects or irregularities in appellate procedure without allowing a reasonable time to correct or amend the defects or irregularities."). Further, for instance, an appellate court must not refuse to file a supplemental clerk's record or reporter's record because the appellant failed to timely request them. See id. R. 34.5(b)(4), 34.6(b)(3). In fact, this Court and the trial court are jointly responsible for ensuring that the appellate record is timely filed. See id. R. 35.3(c).
III. ANALYSIS
The principal delay in this case occurred when the trial court clerk inadvertently failed to forward the notice of appeal to this Court. See TEX. R. APP. P. 25.1(f). This error cannot be laid at appellant's feet. See id.; In re Smith, 263 S.W.3d 93, 95-96 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding) (stating that the clerk has the "mandatory, ministerial duty" to file and forward to the appropriate appellate court a notice of appeal). The more difficult question concerns appellant's duties to institute inquiries regarding the status of the appeal during the period after the notice was filed in the trial court but before it was ultimately filed in our Court. During this period of time, the appeal was effectively in limbo, and appellant did not have the benefit of the directives, instructions, reminders, and opportunities to cure that this Court typically provides during the pendency of an appeal. While we disapprove of appellant's failure to pursue her appeal during this period, we conclude, under the specific circumstances present here, that this error was not fatal in this case. In reaching this conclusion, we note that appellant acted with reasonable diligence to prosecute her appeal after the appeal was filed in our Court. Appellee did not file his motion to dismiss until after the clerk's record and reporter's record had been filed and appellant had paid her filing fee and filed her docketing statement. In fact, the appeal has now been fully briefed. See Horton, 591 S.W.3d at 570 ("When a case ripe for decision is resolved based on a procedural technicality, judicial economy is not served."). There are no indications in the record before us that this appeal was taken for purposes "unrelated to the disposition of the case," or that appellant "has engaged in dilatory and bad faith abuse of the judicial process," or that appellant has attempted to "manipulate the appellate system." Meyer v. State, 310 S.W.3d 24, 26-27 (Tex. App.—Texarkana 2010, no pet.). Finally, the record lacks evidentiary support for appellee's contentions that he has been prejudiced by the delay or that laches should bar reaching the merits of the appeal.
In short, after reviewing the relevant rules of appellate procedure and the controlling precedent from the Texas Supreme Court, we believe that the best course of action is to reach the merits of this appeal rather than dispose of it for want of jurisdiction.
IV. CONCLUSION
The Court, having examined and fully considered appellee's motion to dismiss, appellant's response, and appellee's reply, is of the opinion that appellee's motion to dismiss should be denied. Accordingly, we deny appellee's motion to dismiss this appeal. Given, however, that we share appellee's concerns about the delay in this appeal, we will advance this appeal on our docket and handle it as expeditiously as possible.
IT IS SO ORDERED.
PER CURIAM Delivered and filed the 22nd day of July, 2020.