Opinion
14-21-00338-CV
08-17-2021
PHARUS FUNDING LLC AS ASSIGNEE OF LHR, INC., Appellant v. DEBRA D. BAKER, Appellee
On Appeal from the County Civil Court at Law No. 3 Harris County, Texas Trial Court Cause No. 858642
Panel consists of Justices Wise, Jewell, and Spain
MEMORANDUM MAJORITY OPINION
Ken Wise Justice.
This is an appeal from an order signed May 20, 2021 denying a motion to reconsider an application for writ of scire facias to revive a dormant judgment. See Tex. R. Civ. P. 151. On July 19, 2021, appellant filed a motion to dismiss the appeal without prejudice. See Tex.R.App.P. 42.1(a)(1).
We do not reach appellant's motion to dismiss the appeal. Based on our independent review, it appears this court lacks jurisdiction over the appeal. The trial court's order denying appellant's application for writ of scire facias was signed February 11, 2021. Appellant filed a motion to reconsider the February 11, 2021 order on March 15, 2021. The motion to reconsider thus qualifies as a timely motion for new trial. See Tex.R.Civ.P. 4, 329b(a). Accordingly, any notice of appeal from the February 11, 2021 order was due within ninety days of that order, or by May 12, 2021. See Tex.R.App.P. 26.1(a)(1). Appellant did not file a notice of appeal until June 18, 2021. Therefore, we dismiss the appeal for want of jurisdiction.
MEMORANDUM DISSENTING OPINION
Charles A. Spain Justice.
While I agree that an involuntary dismissal for want of jurisdiction appears warranted, the court fails to comply with Texas Rule of Appellate Procedure 42.3 and give the required ten days' notice to all parties of the involuntary dismissal. Tex.R.App.P. 42.3. The court could suspend the operation of Rule 42.3 in this case, order a different procedure, and explain the need to deviate from Rule 42.3, but it does not. See Tex.R.App.P. 2 (authorizing suspension of rules).
I do not read the due-process provisions of Rule 42.3 to be discretionary unless we are willing to suspend the Rule and explain why suspension is warranted. I therefore dissent to dismissing the case without (1) providing notice and an opportunity to be heard as the Rule requires and (2) having the patience to wait ten days.