511 S.W.3d 117
Tex. App.2014Background
- Taylor sued Margo and Williams for injunctive relief under Texas Election Code §273.081.
- Trial court dismissed with prejudice December 18, 2013 after pleas to jurisdiction; counterclaims reserved.
- January 16, 2014 modified order dismissed claims with prejudice and reserved counterclaims for later; superseded December 18 order.
- Taylor filed a February 14, 2014 notice of appeal claiming to appeal the December 18 order.
- Margo/Williams moved to dismiss as untimely and argued it was unclear which order was being appealed; neither order was a final judgment for appeal purposes.
- Court held only the January 16, 2014 order is appealable, corrected defect permitted by Rule 25.1(g); ordered an amended notice within 10 days; denied motion to reconsider.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of appeal from January 16 order | Taylor timely under Verburgt and Rule 26.3 | Appeal untimely; misidentified order | Appeal timely to be determined via amended notice |
| Amendment to notice of appeal allowed under Rule 25.1(g) | Amendment permitted to correct defects | Amendment cannot shift to a different order | Amendment permitted to correct defect; misidentification cured by amendment |
| Which order is subject to appeal | January 16 order is final and appealable | December 18 order was the judgment | January 16, 2014 order is the sole appealable order; December 18 is superseded |
Key Cases Cited
- Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001) (final-judgment timing; accelerated appeals)
- Verburgt v. Dorner, 959 S.W.2d 615 (Tex. 1997) (extension of time for filing appeals)
- Sweed v. Nye, 323 S.W.3d 873 (Tex. 2010) (amendments to notice of appeal for defects allowed)
- Lefton v. Griffith, 136 S.W.3d 271 (Tex.App.—San Antonio 2004) (amendment to notice of appeal for defects permitted)
- Rainbow Group, Ltd. v. Wagoner, 219 S.W.3d 485 (Tex.App.—Austin 2007) (amendment cannot add a different appealable order)
- City of San Antonio v. Rodriguez, 828 S.W.2d 417 (Tex. 1992) (amendment for defects; certain corrections allowed)