Brigetta D'Olivio a/k/a Brigetta Alix Anderson, Alix Brigetta v. Hilary Thompson Hutson

Summary

The Texas Court of Appeals for the Fifth District of Dallas denied the appellee’s motion to dismiss an appeal as untimely or for failure to prosecute. The court held that the appellant’s mailed motion for new trial was timely under Texas Rule of Civil Procedure 5 and that the motion extended the appellate deadlines despite the delayed payment of the filing fee.

Holdings

1. The motion for new trial was timely because it was mailed on September 9, within ten days of the September 10 deadline, and was therefore considered timely filed under Texas Rule of Civil Procedure 5.
2. A motion for new trial is conditionally filed and extends the appellate deadlines when presented to the trial court clerk, even if tendered without the required filing fee.
3. The notice of appeal was timely because the timely motion for new trial extended the appellate deadlines.
4. The appeal should not be dismissed for failure to prosecute based on appellant's delay in paying the clerk's-record fee while disputing the amount.

Questions Presented

1. Whether the motion for new trial was timely under Texas Rule of Civil Procedure 5 when it was mailed within the applicable filing period but received and date-stamped later.
2. Whether a motion for new trial conditionally filed without the required filing fee extends the deadline for filing the notice of appeal.
3. Whether the appeal should be dismissed for failure to prosecute because appellant delayed paying the fee for the clerk's record.

Disposition

other