Full Opinion

NUMBER 13-26-00316-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG IN THE MATTER OF THE MARRIAGE OF MALAKI POLITE HAWKINS AND HALE HORLEY HAWKINS ON APPEAL FROM THE 480TH DISTRICT COURT OF WILLIAMSON COUNTY, TEXAS MEMORANDUM OPINION Before Justices Silva, Peña, and Fonseca Memorandum Opinion by Justice Silva We handed down our memorandum opinion and judgment in this cause on June 4, 2026, dismissing the appeal for want of jurisdiction. Appellant Hale Horley Hawkins filed a motion for rehearing and en banc reconsideration wherein he requested we withdraw our memorandum opinion and judgment and reinstate the appeal. Among the issues raised, appellant argued, among other things, that his appeal was wrongly dismissed. Appellee Malaki Polite Hawkins filed a response. After examining and fully considering the issues raised in appellant’s motion and appellee’s response, we deny appellant’s motion for rehearing. However, we withdraw our June 4, 2026 memorandum opinion and judgment, and we substitute the following memorandum opinion and accompanying judgment in their place. I. BACKGROUND 1 This matter is before the Court on appellant’s motion for extension of time to file notice of appeal and motion for extension of time to file brief. On December 4, 2025, the trial court signed a final decree of divorce. On December 10, 2025, appellant filed a postjudgment motion labeled as motion for new trial, which stated that it is being filed “solely for the purpose of extending the appellate timetable and is not filed to challenge the substance of the judgment or to request that it be altered or set aside.” On March 9, 2026, appellant filed a notice of appeal attempting to appeal the divorce decree in trial court cause number 24-0077-F480. See TEX. R. APP. P. 26.1(a). On May 1, 2026, the Clerk of the Court notified appellant that it appeared that the appeal was not timely perfected. Appellant was advised that the appeal would be dismissed if the defect was not corrected within ten days from the date of receipt of the notice. See id. R. 42.3(a), (c). On May 5, 2026, appellant filed a motion for extension of time to file the appellate brief seeking an additional thirty days. On May 8, 2026, appellant filed a motion for extension of time to file the notice of appeal. See id. R. 26.3. II. STANDARD OF REVIEW AND APPLICABLE LAW The Court is bound by the Texas Rules of Appellate Procedure. Absent a timely 1 This case is before the Court on transfer from the Third Court of Appeals pursuant to a docket- equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE §§ 22.220(a) (delineating the jurisdiction of appellate courts), 73.001 (granting the supreme court the authority to transfer cases from one court of appeals to another at any time that there is “good cause” for the transfer). We are bound by the precedent of the transferring court to the extent that it differs from our own. See TEX. R. APP. P. 41.3. 2 filed notice of appeal, this court lacks jurisdiction over the appeal. Baker v. Regency Nursing & Rehab. Ctrs., Inc., 534 S.W.3d 684, 684 (Tex. App.—Corpus Christi–Edinburg 2017, no pet.). Generally, a notice of appeal is due within thirty days after the judgment is signed. See TEX. R. APP. P. 26.1. If, within thirty days after the judgment is signed, any party timely files a motion for new trial, the deadline to file a notice of appeal is extended to ninety days after the date the judgment is signed. Id. R. 26.1(a); see TEX. R. CIV. P. 329b(a), (g). “Any post[]judgment motion, which, if granted, would result in a substantive change in the judgment as entered extends the time for perfecting the appeal.” Smith v. City of Garland, 523 S.W.3d 234, 240 (Tex. App.—Dallas 2017, no pet.) (citing Gomez v. Tex. Dep’t of Crim. Just., 896 S.W.2d 176, 177 (Tex. 1995)). To determine whether a postjudgment motion extends appellate deadlines, courts look to the substance of the document rather than its title or caption. Barry v. Barry, 193 S.W.3d 72, 74 (Tex. App.— Houston [1st Dist.] 2006, no pet.). Texas Rule of Civil Procedure 320 allows a party to file a motion for new trial and request that the judgment be set aside for good cause, provided that the motion is in writing and signed by the party or his attorney. TEX. R. CIV. P. 320. “A motion for new trial must, by its very nature, seek to set aside an existing judgment and request relitigation of the issues.” Barry, 193 S.W.3d at 74 (citing Finley v. J.C. Pace Ltd., 4 S.W.3d 319, 320 (Tex. App.—Houston [1st Dist.] 1999, no pet.)). If an instrument does not meet these minimum requirements, it is not a motion for new trial. Id. (citing Mercer v. Band, 454 S.W.2d 833, 836 (Tex. App.—Houston [14th Dist.] 1970, no writ)). We are to construe the rules of appellate procedure reasonably and liberally so that the right to appeal is not lost by imposing requirements not absolutely necessary to 3 effectuate the purpose of a rule. See Verburgt v. Dorner, 959 S.W.2d 615, 616–17 (Tex. 1997). However, we are prohibited from enlarging the scope of our jurisdiction by enlarging the time for perfecting an appeal in a civil case in a manner not provided for by rule. See TEX. R. APP. P. 2; In re T.W., 89 S.W.3d 641, 642 (Tex. App.—Amarillo 2002, no pet.). III. ANALYSIS While appellant filed a document labeled as a motion for new trial, we must look to the substance contained in the document to determine whether the filing of the motion effectively extended the deadline for filing a notice of appeal. See Barry, 193 S.W.3d at 74; Smith, 523 S.W.3d at 240; TEX. R. APP. P. 26.1(a). Appellant’s motion stated it was filed “solely for the purpose of extending the appellate timetable and is not filed to challenge the substance of the judgment or to request that it be altered or set aside.” Appellant’s motion did not seek to set aside the final decree of divorce or relitigate any issue already resolved by the trial court. See Barry, 193 S.W.3d at 74. In fact, appellant’s motion stated precisely the opposite. If granted, appellant’s motion would not result in a substantive change in the trial court’s judgment. See Smith, 523 S.W.3d at 240. Consequently, we cannot conclude appellant’s motion qualifies as a motion for new trial, nor any other postjudgment motion which could have extended appellant’s deadline to timely perfect an appeal. See Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 313–14 (Tex. 2000) (noting “only a motion seeking a substantive change will extend the appellate deadlines and the court’s plenary power under Rule 329b(g)” and that “a timely filed postjudgment motion that merely seeks to correct clerical errors, such as punctuation, grammar or misspellings, will not qualify under Rule 329b(g)”); Barry, 193 4 S.W.3d at 74; Mercer, 454 S.W.2d at 836; TEX. R. APP. P. 26.1(a). Cf. Smith, 523 S.W.3d at 240; Aero at Sp. Z.O.O. v. Gartman, 469 S.W.3d 314, 316 (Tex. App.—Fort Worth 2015, no pet.) (“[A]ny timely-filed motion seeking to vacate the trial court’s judgment, even a motion asserting meritless grounds for vacating the judgment, constitutes a motion for new trial that will extend the appellate timetable.”); Kashan v. McLane Co., No. 03-11- 00125-CV, 2012 WL 2076821, at *2 (Tex. App.—Austin June 7, 2012, no pet.) (mem. op.) (“A timely filed postjudgment motion that seeks a substantive change in the judgment will extend both the trial court’s plenary jurisdiction and the deadline to perfect an appeal.”); Matinee Media Corp. v. Falcon, No. 04-12-00133-CV, 2012 WL 3104530, at *3 (Tex. App.—San Antonio Aug. 1, 2012, no pet.) (mem. op.) (concluding appellees’ motion to enforce qualified as a “motion to modify under Rule 329(b)(g)” because it sought a “substantive change” in the trial court’s dismissal order). 2 The judgment subject to appellant’s attempted appeal was signed on December 4, 2025. Because appellant failed to file a postjudgment motion that would extend the appellate deadline, the rule providing a ninety-day extension to file a notice of appeal was not applicable. Thus, appellant’s deadline to file his notice of appeal was thirty days after the date the judgment was signed—which in this case is Monday, January 5, 2026, since the thirtieth day fell on a Saturday. See TEX. R. APP. P. 4.1(a), 26.1. Appellant did not file his notice of appeal until March 9, 2026. Therefore, appellant’s notice of appeal was not filed timely under the appellate rules and was beyond the fifteen-day grace period during which we may imply a timely motion to extend the time to perfect the appeal. See id. R. 2 Neither party argues that appellant’s motion for new trial qualifies as a deadline-extending motion. 5 26.1, 26.3; Verburgt, 959 S.W.2d at 617. And although appellant did file a response to the Court’s defect notice, he failed to convince this Court that we have jurisdiction over his attempted appeal. We acknowledge that “[t]he filing of a motion for new trial in order to extend the appellate timetable is a matter of right.” Old Republic Ins. Co. v. Scott, 846 S.W.2d 832, 833 (Tex. 1993). However, Old Republic is not dispositive concerning whether appellant’s December 10, 2025 postjudgment motion properly qualifies as a motion for new trial because that case did not discuss the requirements for a postjudgment motion to qualify as a motion for new trial, nor did it analyze whether the postjudgment motion in that case sought to vacate the judgment or sought a substantive change in the judgment. See id. We also note that Smith held that “[m]otions for new trial may be filed for the sole purpose of extending the appellate timetable.” Smith, 523 S.W.3d at 240 (citing Rainier Income Fund I, Ltd. v. Gans, 501 S.W.3d 617, 621–22 (Tex. App.—Dallas 2016, pet. denied)). Smith cited to Rainier in support of its holding. However, Rainier merely held that “one purpose of a motion for new trial is to extend the appellate timetable.” Rainier, 501 S.W.3d at 621. We read nothing in Rainier to support Smith’s “sole purpose” holding, and therefore decline to follow it. See id. Furthermore, neither Smith nor Rainier dispense with the requirements for a postjudgment motion to qualify as a motion for new trial. And, in fact, Smith held that the postjudgment motion involved in that case met those requirements. See Smith, 523 S.W.3d at 240 (“If granted, Smith’s motion for new trial would ‘result in a substantive change in the judgment as entered.’” (quoting Gomez, 896 S.W.2d at 177)). Thus, Smith did not involve a postjudgment motion that was expressly “not filed to challenge the substance of the judgment or to request that it be altered or set 6 aside,” as here. Rule 42.3 permits an appellate court, on its own initiative after giving ten days’ notice to all parties, to dismiss the appeal for want of jurisdiction or for failure to comply with a requirement of the appellate rules. See TEX. R. APP. P. 42.3(a), (c). Because appellant’s notice of appeal was untimely, we lack jurisdiction over the appeal. See Baker, 534 S.W.3d at 684. Accordingly, we deny appellant’s motion for rehearing and dismiss the entire cause for want of jurisdiction. See id. R. 42.3(a). CLARISSA SILVA Justice Delivered and filed on the 31st day of August, 2026. 7