Judge Per Curiam to the Rescue: Ryland Enterprise v. Weatherspoon

When counting your blessings, do not neglect to mention Judge Per Curiam at the Supreme Court of Texas. On Friday, Judge Per Curiam threw out a life line to rescue an appeal.

The lower courts had held that a pre-judgment motion for JNOV did not extend the appellate time table. Judge Per Curiam, kind and soft-hearted chap that he/she is, held that it was close enough.

The prejudgment NOV motion did extend the appellate time table, making the notice of appeal timely. To prove it, Judge Per Curiam took a jaunt through the rules governing appellate time tables in a manner befitting someone sitting for the board certification exam (*ahem*).

In this case, a number of overlapping procedural rules apply. Under Rule 26.1, the normal filing deadline for a notice of appeal is thirty days. That deadline is extended to ninety days “if any party timely files: (1) a motion for new trial; [or] (2) a motion to modify the judgment.” TEX. R. APP. P. 26.1(a)(1)–(2). Texas Rule of Civil Procedure 329b states that a motion for new trial is timely if filed “prior to or within thirty days after the judgment . . . complained of is signed.” TEX. R.CIV. P. 329b(a) (emphasis added). This “prior to” language is supplemented and clarified by civil rule 306c, which provides that “[n]o motion for new trial . . . shall be held ineffective because prematurely filed; but every such motion shall be deemed to have been filed on the date of but subsequent to the time of signing of the judgment the motion assails.” TEX. R. CIV. P. 306c. The Rules of Appellate Procedure echo this concept in Rule 27.2, under which “[t]he appellate court may treat actions taken before an appealable order is signed as relating to an appeal of that order and give them effect as if they had been taken after the order was signed.” TEX. R.APP. P. 27.2. Finally, civil rule 329b(g) states that a “motion to modify . . . shall be filed and determined . . . and shall extend . . . the time for perfecting an appeal in the same manner as a motion for new trial.” TEX. R. CIV. P. 329b(g). Thus, the premature filing rules in civil rule 306c and appellate rule 27.2 apply equally to motions for new trial or to modify the judgment. Under these overlapping procedural rules, the filing of a motion for new trial or to modify the judgment, before the judgment is signed or within thirty days after, extends the deadline for filing a notice of appeal to ninety days.

Just about the only unpardonable sin in appellate practice is failing to get the notice of appeal filed on time. So much so that one of my unalterable life goals is to complete my appellate career without having to "make" any law on appellate jurisdiction.

Way too scary.

But if you do have to make jurisdictional law, it is probably Judge Per Curiam -- not the intermediate courts -- who will grant you mercy. 

Judge Per Curiam, full of grace.