ACCEPTED 02-14-00395-CV SECOND COURT OF APPEALS FORT WORTH, TEXAS 1/20/2015 3:02:45 PM DEBRA SPISAK CLERK No. 02-14-00395-CV FILED IN 2nd COURT OF APPEALS IN THE SECOND DISTRICT COURT OF APPEALS FORT WORTH, TEXAS FORT WORTH, TEXAS 01/20/2015 3:02:45 PM DEBRA SPISAK Clerk RICHARD F. WALSH, MEDICA-RENTS CO., LTD, AND MED-RCO, INC., Appellants, v. WOUNDKAIR CONCEPTS, INC., DAN ANDERSON, AND KIM ANDERSON, Appellees.

On Appeal from the 17th Judicial District Court Tarrant County, Texas Cause No.17-217058-06

REPLY SUPPORTING APPELLATE JURISDICTION

Stephen L. Tatum J. Lyndell Kirkley Douglas W. Alexander State Bar No. 19674500 State Bar No. 11523000 State Bar No. 00992350 [email protected] [email protected] [email protected] Ryan Logan Valdez THE KIRKLEY LAW FIRM, LLP Amy Warr State Bar No. 24037627 100 N. Forest Park Boulevard State Bar No. 00795708 [email protected] Suite 220 [email protected] John S. Polzer Fort Worth, Texas 76102 ALEXANDER DUBOSE State Bar No. 24042609 Telephone: (817) 335-3311 JEFFERSON & TOWNSEND LLP [email protected] Facsimile: (817) 335-7733 515 Congress Avenue CANTEY HANGER, L.L.P. Suite 2350 Cantey Hanger Plaza Austin, Texas 78701-3562 West 6th Street Telephone: (512) 482-9300 Suite 300 Facsimile: (512) 482-9303 Fort Worth, Texas 76102 Telephone: (817) 877-2800 Facsimile: (817) 877-2807 ATTORNEYS FOR APPELLANTS TABLE OF CONTENTS Index of Authorities ................................................................................................. ii Argument...................................................................................................................1 I. An extension of time is warranted. .................................................................1 II. This Court has jurisdiction to grant the extension of time. ............................3 Prayer ........................................................................................................................7 Certificate of Service ................................................................................................9 INDEX OF AUTHORITIES Cases Bennett v. Cochran, 96 S.W.3d 227 (Tex. 2002)...................................................................................8 City of Houston v. Little Nell Apartments, L.P., 424 S.W. 3d 640 (Tex. App.—Houston [14th Dist.] 2014, pet. filed) ......................................................................................................................8 Crump v. Hill, 104 F.2d 36 (5th Cir. 1939) ..................................................................................7 Gregorian v. Ewell, 106 S.W.3d 257 (Tex. App.—Ft. Worth 2003, no pet.) ...........................3, 4, 5, 8 In re J.M., 396 S.W.3d 528 (Tex. 2013) ........................................................................3, 6, 7 In re J.M., 396 S.W.3d 609 (Tex. App.—Tyler 2012), rev’d, J.M., 396 S.W.3d at 529 .................................................................................................................6, 7 In re L.C.W., 411 S.W.3d 116 (Tex. App.—El Paso 2013, no pet.) .......................................... 8 Verburgt v. Dorner, 959 S.W.2d 615 (Tex. 1997) ................................................................................ 8 Rules TEX. R. APP. P. 26.1(a) ...............................................................................................4 TEX. R. APP. P. 26.3 ...................................................................................................4

ii ARGUMENT In response to the Court’s inquiry about appellate jurisdiction, Medica-Rents moved for an extension of time to file its notice of appeal and established its entitlement to that relief. Medica-Rents’ Br. at 15-19. The Appellee, Woundkair, does not argue that the Court should deny the extension as an exercise of its discretion. In fact, Woundkair does not dispute that (1) Medica-Rents provided a reasonable explanation for its untimely notice, and (2) granting the extension would cause no prejudice to Woundkair, because it was fully aware that Medica-Rents intended to appeal.

Regardless, Woundkair asserts, there is a “gotcha.” Woundkair contends that, despite the clear equities, the Court lacks authority to grant the extension of time.

Woundkair Br. at 15. That is incorrect. Under its own precedent and that of the Texas Supreme Court, this Court has jurisdiction to grant the extension. See In re J.M., 396 S.W.3d 528 (Tex. 2013) (per curiam); Gregorian v. Ewell, 106 S.W.3d 257 (Tex. App.—Ft. Worth 2003, no pet.).

I. An extension of time is warranted.

After the jury returned a $4.4 million verdict against Medica-Rents, its attorneys immediately began taking the necessary steps to challenge the verdict in the trial court and on appeal. They filed a motion for judgment notwithstanding the verdict. After judgment was entered, they renewed the JNOV motion and moved for new trial, extending the appellate deadlines. Medica-Rents Br. Ex. C. They requested the record. Id. Ex. B. They urged the trial court, orally and in writing, to grant the new trial to avert a costly, but otherwise inevitable, appeal. Id. Exs. E, H.

They did all of these things within 105 days of the judgment—the relevant time period for perfecting appeal (90 days) and extending the time to do so (an additional 15 days). TEX. R. APP. P. 26.1(a), 26.3. The only action Medica-Rents’ attorneys did not take within the 105 days was to file a formal notice of appeal, because they mistakenly believed the deadline was several weeks later. Medica- Rents Br. Exs. F, G.

Woundkair neither disputes these facts nor alleges that the failure to file was deliberate or intentional. To the contrary, it acknowledges that Medica-Rents’ attorneys’ failure was due to a “good faith and mistaken belief about the deadline” for the notice of appeal. Woundkair Br. at 15. Neither does Woundkair assert any prejudice. It does not dispute that it was fully aware of Medica-Rents’ intent to appeal the adverse judgment. See Gregorian, 106 S.W. 3d at 260 (granting extension of time for notice of appeal in the absence of surprise or prejudice). Nor could it. The record shows that Woundkair participated in multiple on-the-record or written discussions regarding Medica-Rents’ appeal, including the amount and timing of the supersedeas bond. Medica Rents Br. at 13 n.30, 16, Exs. E, I. The undisputed equities, therefore, overwhelmingly weigh in favor of granting the extension.

II. This Court has jurisdiction to grant the extension of time.

Woundkair contends that the failure to timely file the notice of appeal is “incurable.” Woundkair Br. at 15. Not so. This Court has authority to grant the Appellants’ motion for extension of time because this case fits squarely under the Supreme Court’s decision in J.M. and this Court’s decision in Gregorian.

Woundkair first argues that Medica-Rents could not have made a bona-fide effort to appeal within the 105-day window because it mistakenly believed that the notice of appeal was due weeks later and planned to file it on that date. Woundkair Br. at 5. But that argument proves too much; it would prevent any appeal where the notice of appeal was incorrectly calendared. This Court has made clear that even when there is a mistake about the deadline, other timely-filed documents can demonstrate the appellant’s desire to appeal. Gregorian, 106 S.W.3d at 258 (holding that cash deposit in lieu of supersedeas bond was sufficient to invoke appellate jurisdiction where notice of appeal was filed 30 days late because of calendaring mistake).

There is no material difference between knowing what the correct date is to file a notice of appeal but making a mistake in calendaring it and being mistaken about the correct date. Both are good-faith mistakes of a type that should not divest an appellate court of jurisdiction when, as here, the appellant has timely filed an instrument demonstrating its desire to appeal.

Woundkair also contends that none of the documents that Medica-Rents filed during the 105-day window provided notice of its present (rather than future) intent to appeal. That is incorrect. Medica-Rents’ December 5, 2014, letter to the trial court clearly and unequivocally stated that Medica-Rents intended to appeal if its post-judgment motions were denied. Woundkair attempts to dismiss this letter as discussing only the “possibility” of an appeal, Woundkair Br. at 11, but its language is definite and direct: Medica-Rents stated that it “will be forced to appeal.” Medica- Rents Br. App. H at 4.

Woundkair further contends that this letter is insufficient to invoke appellate jurisdiction on the ground that it expresses, at most, a “conditional, future intent to appeal.” Woundkair Br. at 2. But the Texas Supreme Court rejected just such an argument in J.M.

In that case, the losing party timely filed a “Motion for New Trial or, in the Alternative, Notice of Appeal.” J.M., 396 S.W.3d at 529. The court of appeals dismissed the appeal for want of jurisdiction because “[a] conditional notice of appeal contained within a motion for new trial does not express a party’s present intention to perfect an appeal.” In re J.M., 396 S.W.3d 609, 613 (Tex. App.—Tyler 2012), rev’d, J.M., 396 S.W.3d at 529. The court of appeals reasoned that the conditional notice was not a bona fide attempt to invoke appellate jurisdiction because it expressed the party’s “intent to appeal the termination order if her motion

for new trial is not granted; it does not express her present intent to perfect an appeal.” Id. The Texas Supreme Court reversed, holding that “the present filing expressed an intent to appeal to the court of appeals and was partially entitled a notice of appeal, which constituted a bona fide attempt to invoke appellate jurisdiction upon its filing with the trial court clerk.” J.M., 396 S.W.3d at 531. Unlike the court of appeals, the Supreme Court gave no weight to the notice’s conditional nature. See id. 1 Similarly, the contingent nature of Medica-Rents’ statement of intent to appeal is immaterial. The key is whether it “expressed an intent to appeal,” J.M., S.W.3d at 531, and it did. In J.M., the party advanced its notice of appeal “in the alternative” to its motion for new trial. Id. at 529. Medica-Rents gave, in substance, an identical statement of intent: it would appeal if the trial court denied its postjudgment motions. Medica-Rents Br. at App. H. at 4.

The only difference is that the party in J.M. included the words “Notice of Appeal” in the title of its document. J.M., 396 S.W.3d at 529. However, although the title “Notice of Appeal” can indicate the requisite intent to appeal, such a title is not required; indeed, the “primary factor . . . is not the form or substance” of the instrument, but its intent. Id. at 530; Crump v. Hill, 104 F.2d 36, 38 (5th Cir. 1939)

Woundkair relies on a long list of court of appeals decisions that rely on the same reasoning the Supreme Court rejected in J.M. See Woundkair Br. at 4-5. All of these cases pre-date J.M.; thus, the Court should not rely upon them.

(holding that “failure to comply formalistically” with notice-of-appeal requirements should not “defeat[] substantial rights.”); In re L.C.W., 411 S.W.3d 116, 121 (Tex. App.—El Paso 2013, no pet.) (applying J.M. and holding that party’s filing containing grounds for appeal was bona-fide attempt to invoke appellate jurisdiction even though not a “notice of appeal”); City of Houston v. Little Nell Apartments, L.P., 424 S.W. 3d 640, 645-46 (Tex. App.—Houston [14th Dist.] 2014, pet. filed) (citing J.M. to hold that co-party should be permitted to appeal even though he was not named in the notice of appeal).

This case is analogous to J.M. The intent expressed in the filed documents is the same in both cases: a clear, unambiguous intent to appeal an adverse judgment.

As this Court has observed, “appellate courts should not dismiss an appeal for a procedural defect ‘whenever any arguable interpretation of the Rules of Appellate Procedure would preserve the appeal.’” Gregorian, 106 S.W.3d at 258 (quoting Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997)). Those courts should “interpret[] the appellate rules, wherever possible, to achieve the aim of furthering resolution of appeals on the merits.” Id. (quoting Bennett v. Cochran, 96 S.W.3d 227, 230 (Tex. 2002)). The rules can be interpreted to support jurisdiction here, and this Court should do so.

PRAYER Dismissal is not warranted. Therefore, this appeal should proceed to briefing and disposition on the merits.

Respectfully submitted,

/s/ Douglas W. Alexander Douglas W. Alexander State Bar No. 00992350 [email protected] Amy Warr State Bar No. 00795708 [email protected] ALEXANDER DUBOSE JEFFERSON & TOWNSEND LLP Congress Avenue, Suite 2350 Austin, Texas 78701-3562 Telephone: (512) 482-9300 Facsimile: (512) 482-9303 Stephen L. Tatum State Bar No. 19674500 [email protected] Ryan Logan Valdez State Bar No. 24037627 [email protected] John. S. Polzer State Bar No. 24042609 [email protected] CANTEY HANGER, L.L.P. Cantey Hanger Plaza West 6th Street, Suite 300 Fort Worth, Texas 76102 Telephone: (817) 877-2800 Facsimile: (817) 877-2807

J. Lyndell Kirkley State Bar No. 11523000 [email protected] THE KIRKLEY LAW FIRM, LLP N. Forest Park Boulevard, Suite 220 Fort Worth, Texas 76102 Telephone: (817) 335-3311 Facsimile: (817) 335-7733 ATTORNEYS FOR APPELLANTS

CERTIFICATE OF SERVICE On January 20, 2015, I electronically filed this Reply Supporting Appellate Jurisdiction with the Clerk of the Court using the eFile.TXCourts.gov electronic filing system which will send notification of such filing to the following (unless otherwise noted below).

John H. Cayce, Jr. State Bar No. 04035650 [email protected] KELLY HART & HALLMAN LLP KELLY HART &HALLMAN LLP Main Street, Suite 2500 Fort Worth, Texas 76102 Telephone: (817) 332-2500 Telecopier: (817) 878-9280 Mack Ed Swindle State Bar No. 19587500 [email protected] Brent Shellhorse State Bar No. 24008022 [email protected] WHITAKER CHALK SWINDLE & SCHWARTZ PLLC Commerce Street, Suite 3500 Fort Worth, Texas 76102 Telephone: (817) 878-0500 Facsimile: (817) 878-0501 Attorneys for Appellees

/s/ Douglas W. Alexander Douglas W. Alexander