Pedro Ramirez and Alma Ramirez v. Alicia Perez

Motion for Rehearing Granted; Appeal Reinstated; Memorandum Opinion
filed November 21, 2023, Withdrawn; and Order and Concurring
Memorandum Opinion on Rehearing filed February 15, 2024.

In The

Fourteenth Court of Appeals
____________

NO. 14-23-00503-CV
____________

PEDRO RAMIREZ AND ALMA RAMIREZ, Appellants

V.

ALICIA PEREZ, Appellee

On Appeal from the 454th District Court
Medina County, Texas
Trial Court Cause No. 16-12-23965-CV

CONCURRING MEMORANDUM OPINION ON REHEARING

I concur in granting the motion for rehearing as this court erred in dismissing
the appeal.

Appellants correctly point out that the appellee’s motion to dismiss was not
verified. See Tex. R. App. P. 10.2. While that is not the sole reason we erred in
granting the motion to dismiss, in retrospect this court should have notified the
movant, given appellants an opportunity to cure, and considered the motion in
greater depth.
Having independently concluded that this court has subject-matter
jurisdiction, 1 I concur in granting both the motion for rehearing and the requested
relief of reinstating the appeal.

/s/ Charles A. Spain
Justice

Panel consists of Justices Jewell, Spain, and Wilson (Spain, J., concurring).

1
When we reinstate this appeal, we should direct the clerk of this court to note on this
court’s docket that the clerk’s record containing the notice of appeal is both a “Clerk’s record
filed” and “Notice of appeal filed in the court of appeals.” On initial review, the clerk’s record
seemingly did not contain a notice of appeal as required by Texas Rule of Appellate Procedure
34.5(a)(7). This is problematic because this court must determine independently its
subject-matter jurisdiction.

Further review reveals there is another clerk’s record that does contain the notice of
appeal. The June 8, 2023 notice of appeal was delivered to the clerk of the Fourth Court of
Appeals on June 12, 2023 as a part of a clerk’s record that also included the trial court’s March
12, 2023 final judgment and the April 12, 2023 motion for new trial and motion to modify the
judgment. A separate copy of the notice of appeal was also delivered to the clerk of the Fourth
Court of Appeals on June 13, 2023 as required by Texas Rule of Appellate Procedure 25.1(e)
(party must deliver), (f) (trial-court clerk must deliver). While the initial Rule 25(f) duty of the
trial-court clerk to deliver the notice of appeal is not required to be in the form of a clerk’s record
(and I have never seen this done before), I nonetheless conclude the notice of appeal is in a
clerk’s record and was timely filed. See Tex. R. App. P. 26.1.

2