Mateo Cortez, as Representative of the Estate of Deborah Cortez v. Sandra Flesher Brown, Charlotte Flesher Ash, Charlene Flesher Johnston, Connie Lou Keith Barry, Randall Wayne Davis, Virginia Villers, Charles Roberts, Lisa A. Smith, Patricia Chapman, Betty J. Marks Webb, James Berl Marks, Linda Murray
03-17-00365-CV
| Tex. App. | Jan 5, 2018Background
- Appellant Mateo Cortez, as representative of Deborah Cortez's estate, seeks leave to amend his notice of appeal to expressly add his trial counsel, the Brotherton Law Firm (Brotherton), as an appellant challenging a post-judgment sanctions order.
- The sanctions order at trial specifically named Brotherton and imposed monetary sanctions against them; Brotherton’s name was omitted from the initial notice of appeal.
- Cortez filed an opening brief that explicitly challenges the sanctions against Brotherton and addresses why Brotherton’s actions were not sanctionable; the sanctions issue and amount against Brotherton were included in the docketing statement.
- Appellees oppose amendment, arguing Rule 25.1 should be narrowly construed (limited to clerical fixes) and claiming prejudice and surprise if Brotherton is added.
- Cortez argues Texas appellate rules and precedent favor liberal amendment of perfecting instruments where there was a bona fide attempt to invoke appellate jurisdiction and no prejudice to appellees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether leave to amend the notice of appeal to add Brotherton should be granted | Cortez: omission was inadvertent; Brotherton made a bona fide attempt to invoke appellate jurisdiction and was litigating sanctions in the opening brief | Appellees: Rule 25.1 should be limited to correcting clerical/typographical errors; adding Brotherton prejudices appellees and invites additional briefing | Court should allow amendment under liberal construction of appellate rules when there is a timely bona fide attempt and no prejudice |
| Whether appellate rules permit adding an unnamed but aligned party to a notice of appeal | Cortez: precedent allows adding inadvertently unnamed appellants when intent to appeal is shown | Appellees: some recent cases refused amendments where the targeted order or party differed from the notice | Precedent supports allowing amendment where the omitted party was clearly the target of the appeal and the record shows intent |
| Whether appellees demonstrated credible surprise or prejudice from amendment | Cortez: appellees were on notice—the docketing statement and brief identified sanctions against Brotherton | Appellees: claimed they did not know reversal of sanctions against Brotherton would be sought until after opening brief | Appellees’ prejudice claim is not credible where the sanctions against Brotherton were expressly pleaded and briefed |
| Whether permitting amendment will lead to burdensome additional briefing | Cortez: Brotherton joined the already-filed opening brief; no extra briefing beyond ordinary appellants’ reply is anticipated | Appellees: allowing amendment could open the door to more separate briefs in future appeals | No undue burden: Brotherton joined existing brief and no separate appellant brief is required; speculation of future abuse does not bar relief |
Key Cases Cited
- Warwick Towers Council of Co-Owners ex rel. St. Paul Fire & Marine Ins. Co. v. Park Warwick, L.P., 244 S.W.3d 838 (Tex. 2008) (appellate rules construed liberally to reach merits; courts should allow amendment of perfecting documents when timely bona fide attempt made)
- Grand Prairie Indep. Sch. Dist. v. Southern Parts Imports, Inc., 813 S.W.2d 499 (Tex. 1991) (appellate courts should permit opportunity to amend or refile instruments required to perfect appeal)
- City of Houston v. Little Nell Apartments, L.P., 424 S.W.3d 640 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (leave granted to amend notice to add an inadvertently unnamed appellant where intent to appeal was shown)
- Loeffler v. Lytle Indep. Sch. Dist., 211 S.W.3d 331 (Tex. App.—San Antonio 2006, pet. denied) (amendment allowed to add sanctioned attorney omitted from notice where brief showed omission was accidental and attorney sought relief)
- In re Curtis, 465 S.W.3d 364 (Tex. App.—Texarkana 2015, pet. dism’d) (discusses circumstances where adding an aligned but unnamed party was not supported by sufficient evidence of intent)