David Gillespie and Michael O'Brien v. A.L. Hernden and Frederick R. Zlotucha
04-15-00405-CV
Tex. App.—WacoNov 19, 2015Background
- Two plaintiffs (Gillespie and O’Brien) sued Appellees (Hernden and Zlotucha) for legal malpractice and sought partial/summary judgment.
- The trial court denied the plaintiffs’ summary judgment motion; a hybrid summary judgment was granted against the plaintiffs ordering they take nothing.
- Gillespie filed a notice of appeal on July 3, 2015, but the court later found it timely only for Gillespie and not for O’Brien.
- The appellate court issued orders indicating a single appellant, Gillespie, and notified him of fee payment and docketing requirements.
- Gillespie’s counsel represented the notice of appeal was filed on behalf of a single plaintiff, Gillespie, not O’Brien; later, Gillespie filed an amended notice attempting to include O’Brien.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether O’Brien may be included in the appeal via amended notice. | O’Brien should be allowed to participate via amended notice. | Amendment cannot bootstrap jurisdiction for a party not timely appealing. | Amended notice struck; no jurisdiction to include O’Brien. |
| Whether Gillespie’s amended notice preserves cross-appeal rights for Hernden and Zlotucha. | Cross appeal should be allowed for all timely appellants. | Cross appeal timing barred by Rule 26.1 and lack of timely cross notice. | Amended notice did not sustain cross-appeal eligibility; strike or denial. |
| Whether the late notice of cross appeal can be timely under Rule 26.3. | Rule 26.3 extension should cure due to late first notice. | Rule 26.3 cannot revive untimely cross appeals. | Rule 26.3 does not validate a late cross appeal; cross appeal untimely. |
| If not striking, whether to grant cross-appeal extension to file within Rule 26.3. | If the amended notice remains, allow timely cross appeal. | Extending time would prejudice appellees and alter appeal time. | Limitations on extensions; relief not granted. |
Key Cases Cited
- Verburgt v. Dorner, 959 S.W.2d 615 (Tex. 1997) (bolsters preservation of right to appeal despite defects but not all defects)
- In re J.M., 396 S.W.3d 528 (Tex. 2013) (timeliness and bona fide attempt to invoke jurisdiction required)
- In re K.A.F., 160 S.W.3d 923 (Tex. 2005) (not every defective filing preserves appeal rights)
- Bowles v. Russell, 551 U.S. 205 (U.S. 2007) (jurisdictional nature of notice of appeal deadline)
- Grand Prairie Indep Sch. Dist. v. S. Parts Imports, Inc., 813 S.W.2d 499 (Tex. 1991) (court may allow amendment to perfect appeal in some circumstances)