Case Information
*0 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 11/19/2015 3:54:26 PM KEITH E. HOTTLE Clerk *1 ACCEPTED 04-15-00405-cv FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 11/19/2015 3:54:26 PM KEITH HOTTLE CLERK C AUSE N O . 04-15-00405-CV D AVID G ILLESPIE , § I N THE C OURT OF A PPEALS
A PPELLANT , §
§
— VERSUS — § F OURTH C OURT OF A PPEALS D ISTRICT
§
A.L. H ERNDEN AND §
F REDERICK R. Z LOTUCHA , §
A PPELLEES . § S AN A NTONIO , T EXAS O PPOSED M OTION TO S TRIKE U NTIMELY “A MENDED ” N OTICE OF A PPEAL F ILED F OUR M ONTHS A FTER THE D EADLINE , AND , IN THE A LTERNATIVE , M OTION TO E XTEND T IME TO F ILE N OTICE OF C ROSS A PPEAL TO THE HONORABLE JUSTICES OF SAID COURT:
NOW COME Appellees A.L. Hernden and Frederick R. Zlotucha and file this Opposed
Motion to Strike Untimely “Amended” Notice of Appeal Filed Four Months After the Deadline,
and, in the Alternative, Motion to Extend Time to File Notice of Cross Appeal. In support of this
motion, Hernden and Zlotucha respectfully show the Court as follows:
A. I NTRODUCTION 1. Two Plaintiffs filed this legal malpractice case. Two Plaintiffs lost on summary
judgment. Two Plaintiffs asked the trial court to reconsider that order. But only one
Plaintiff filed a notice of appeal. Now, more than four months after the notice of appeal
was due, the second Plaintiff filed an “amended” notice of appeal, asking this Court to
ignore the fact that the deadline to perfect his appeal has long since passed.
2. Two Plaintiffs—David Gillespie and Michael O’Brien—sued Defendants A.L. Hernden
and Frederick R. Zlotucha. Exh. 1. Those two Plaintiffs filed a motion for summary judgment.
4. The 224th Judicial District Court, the Honorable Cathy Stryker, presiding, signed an
order denying the motion for summary judgment filed by those two Plaintiffs. See Exh. 3.
5. Hernden and Zlotucha filed a hybrid motion for summary judgment asking the trial court
to render judgment against those two Plaintiffs. See Exh. 4.
6. On April 2, 2015, Judge Stryker signed an order granting that hybrid motion for summary
judgment and ordering the two Plaintiffs to take nothing by their claims. See Exh. 5. That
order contained a Mother Hubbard clause and recited that it was a final, appealable
judgment. See Exh. 5.
7. On May 1, 2015, those two Plaintiffs filed a motion to reconsider and alternative motion
for new trial. See Exh. 6. Those two Plaintiffs failed to set a hearing on that motion, so
the trial court overruled that motion by operation of law. On July 3, 2015, one of those Plaintiffs—David Gillespie—filed his notice of appeal. See
Exh. 8. That document referenced only one Plaintiff. The language in that notice of
appeal consistently represents that it was filed on behalf of a single Plaintiff:
Exh. 8. Furthermore, Gillespie’s counsel expressly represented that he filed the notice of appeal on behalf of only one Plaintiff:
*3 See Exh. 8. On July 6, 2015, this Court issued a notice informing the parties that the “appellant’s
notice of appeal” had been filed, notifying the “appellant” that he had failed to pay the
filing fee, and alerting “[t]he Appellant” that he had not filed the docketing statement. See
Exh. 9. All the references in this notice were to a single “appellant.” See Exh. 9.
10. On July 28, 2015, this Court issued an order that since “appellant David Gillespie” had
not paid the filing fee, “appellant” was ordered to pay the filing fee within 10 days, and
threatening to dismiss the appeal “[i]f appellant fails to respond. . . .” See Exh. 10.
11. On September 15, 2015, this Court issued an order informing “Appellant David
Gillespie” that his notice of appeal was not filed on time—that notice of appeal was due on July 1, 2015, but Gillespie did not file it until July 3, 2015. Exh. 11. The style of
that order clearly shows that David Gillespie was the only appellant, and refers to the fact
that there is only one appellant in this case six times.
12. On September 30, 2015, “Appellant, David Gillespie” filed a motion to extend the
deadline to file his notice of appeal. See Exh. 12. The style of that motion clearly shows
that David Gillespie was the only appellant, and refers to the fact that he was the only
party on his “side” twelve times. [1] See Exh. 12. In addition, the notice this Court sent the
parties on that date confirmed that there was only one Appellant. See Exh. 13.
13. On October 5, 2015, this Court granted Gillespie’s motion for extension of time to file his
notice of appeal. See Exh. 14. O’Brien’s name does not appear in the style or anywhere in
the body of the order. See Exh. 14. This Court used the singular term “appellant” five
times in that order and the notification of the order. See Exh. 14. This Court did not grant
any extension of time for O’Brien to file his notice of appeal. See Exh. 14.
14. On October 21, 2015, Gillespie filed a motion seeking to extend the deadline for filing
his appellate brief by thirty days. See Exh. 15. The style of that motion clearly shows that
David Gillespie was the only appellant, and refers to the fact that there is one appellant in
this case nine times. See Exh. 15.
15. On October 21, 2015, this Court extended the deadline for Appellant David Gillespie to
file his appellate brief by thirty days. See Exh. 16. O’Brien’s name does not appear in the
style or anywhere in the body of the order. See Exh. 16. This Court used the singular term
“appellant” three times in that order. See Exh. 16.
16. On November 3, 2015, “Appellants” filed an “amended” notice of appeal attempting to
include O’Brien in this appeal. See Exh. 17. For the following reasons, Appellees
respectfully request that this Court strike the amended notice of appeal. Exh. 17. *5 B. A RGUMENT AND A UTHORITIES 17. Texas Rule of Appellate Procedure 25.1(c) provides:
A party who seeks to alter the trial court’s judgment or other appealable order must file a notice of appeal. Parties whose interests are aligned may file a joint notice of appeal. The appellate court may not grant a party who does not file a notice of appeal more favorable relief than did the trial court except for just cause.
Tex. R. App. P. 25.1(c).
18. Texas Rule of Appellate Procedure 25.1(g) provides:
An amended notice of appeal correcting a defect or omission in an earlier filed notice may be filed in the appellate court at any time before the appellant’s brief is filed. The amended notice is subject to being struck for cause on the motion of any party affected by the amended notice. . . .
Tex. R. App. P. 25.1(g).
19. O’Brien now seeks to alter the trial court’s judgment against him. But if he wanted to
alter the trial court’s judgment against him, he was required to file a notice of appeal. See
id . Rule 25.1(c). His deadline to file that notice of appeal was July 1, 2015. See id . Rule
26.1(a)(1). Even with an extension of time, his deadline to file a notice of appeal was July
16, 2015. See id . Rule 26.3. He did not file a notice of appeal until November 3, 2015—
more than four months after his notice of appeal was originally due.
20. Texas has adopted a general policy of construing bona fide but technically defective
attempts to invoke appellate courts’ jurisdiction as sufficient to preserve the right to
appeal. See, e.g., Verburgt v. Dorner , 959 S.W.2d 615, 616 (Tex. 1997). However, not
every attempt to invoke the appellate court’s jurisdiction is a bona fide attempt. See, e.g.,
In re K.A.F. , 160 S.W.3d 923, 928 (Tex. 2005) (filing a motion for new trial is not a bona
fide attempt to invoke the appellate court’s jurisdiction). The requirement of timely
filing a notice of appeal is jurisdictional. Id. ; see also Bowles v. Russell , 551 U.S. 205,
*6 213 (2007) (a party’s “failure to file his notice of appeal in accordance with the statute
therefore deprived the Court of Appeals of jurisdiction.”). If O’Brien wanted to appeal
the judgment, he was required to file a notice of appeal by July 1, 2015 to maintain the
courts’ jurisdiction over his claims. See Tex. R. App. P. 26.1(a)(1); see also Exh. 14.
21. Nothing in the notice of appeal Gillespie filed demonstrates any intent to invoke this
Court’s jurisdiction over O’Brien. See Exh. 8; Cf. In re J.M. , 396 S.W.3d 528, 529-31
(Tex. 2013). O’Brien’s name does not appear in that document. See Exh. 8. Gillespie’s
counsel indicated that he filed that notice of appeal on behalf of a singular “Plaintiff”—
David Gillespie. See Exh. 8.
22. Nothing in Gillespie’s motion to extend the deadline to file the notice of appeal
demonstrates O’Brien’s intent to invoke this Court’s jurisdiction. See Exh. 12. O’Brien’s
name does not appear in that document. See Exh. 12. Gillespie’s counsel indicated that he
filed that motion for extension of time on behalf of a singular “Appellant”—David
Gillespie. See Exh. 12.
23. Nothing in Gillespie’s motion to extend the deadline to file his brief demonstrates that
O’Brien believed he had invoked this Court’s jurisdiction. See Exh. 15. O’Brien’s name
does not appear in that document. See Exh. 15. Gillespie’s counsel indicated that she filed
that motion on behalf of a singular “Appellant”—David Gillespie. See Exh. 15. In fact,
Gillespie’s counsel only entered an appearance on behalf of a singular “Appellant”—
David Gillespie. In Gillespie’s own filings, he referred to a singular Appellant 23 times . Exh. 8, 12,
15. In fact, the first time Gillespie ever referred to multiple “Appellants” was in his
“amended” notice of appeal. See Exh. 17. In every one of his filings to that point, he
referenced a singular “Appellant.” Compare Exh. 8, 12, 15 with Similarly, this Court’s orders and notifications referred to a singular Appellant 21 times .
Exh. 9, 10, 11, 13, 14, 16. 26. A bona fide attempt to invoke this Court’s jurisdiction requires action. See, e.g., In re
J.M. , 396 S.W.3d at 530. On this point, the Supreme Court has written “[a]s long as ‘the
appellant timely files a document in a bona fide attempt to invoke the appellate court’s
jurisdiction, the court of appeals, on appellant’s motion, must allow the appellant an
opportunity to amend or refile the instrument required by law or our Rules to perfect the
appeal.’” Id. (citing Grand Prairie Indep Sch. Dist. v. S. Parts Imports, Inc ., 813 S.W.2d
499, 500 (Tex. 1991)). Here, O’Brien did not take a single action that demonstrates any
intent to invoke this Court’s jurisdiction. This Court should recognize that, since O’Brien
did not file a notice of appeal until more than four months after his deadline to do so, and
since that deadline is jurisdictional, this Court lacks the authority to grant him more
favorable relief than the trial court did. Tex. R. App. P. 25.1(c). In a strikingly similar
case, the Houston First Court of Appeals reached this same conclusion and dismissed, for
want of jurisdiction, the appeal of a plaintiff whose name was excluded from the notice of
appeal. See Crofton v. Amoco Chem. Co. , No. 01-01-00526-CV; 2003 WL 21297588, at
*3 (Tex. App.—Houston [1st Dist.] 2003 pet. denied) (mem. op.). The Houston Court
recognized that such an omission was not “a ‘clerical defect’ susceptible to correction by
amendment.” Id . O’Brien can present no “just cause” why this Court should ignore the
Texas Rules of Appellate Procedure and established precedent that only parties who file a
notice of appeal can ask the courts of appeals to alter the judgments against them. See,
e.g., Tex. R. App. P. 2 (appellate courts are prohibited from altering the time for
perfecting appeals in civil cases); Tex. R. App. P. 25.1(c).
27. In fact, exercising jurisdiction over O’Brien’s late-filed notice of appeal would harm
Hernden and Zlotucha by potentially depriving them of their ability to cross appeal to
complain about O’Brien’s notice of appeal, as described below.
28. Especially since Gillespie’s filings were so clearly made on behalf of Gillespie alone, and
since O’Brien took absolutely no action, this Court should recognize that a notice of
appeal filed on behalf of one party cannot constitute not a bona fide attempt to appeal on
behalf of another, unnamed party.
29. If this Court refuses to strike O’Brien’s “amended” notice of appeal, it will violate Texas
Rule of Appellate Procedure 2, which authorizes appellate courts to suspend the rules
“for good cause,” but prohibits courts from “alter[ing] the time for perfecting an appeal in
a civil case.” Tex. R. App. P. 2. Because granting an extension of more than four months
to file a notice of appeal plainly “alter[s] the time for perfecting an appeal in a civil case,”
the Texas Rules of Appellate Procedure prohibit it.
C. A LTERNATIVE M OTION TO E XTEND T IME T O F ILE N OTICE OF C ROSS A PPEAL
In the event this Court does not strike O’Brien’s “amended” notice of appeal, A.L. Hernden and Frederick R. Zlotucha want to preserve their complaints about O’Brien’s
failure to timely perfect his appeal. Even though they do not seek to alter the trial court’s
judgment, they desire to cross appeal the final judgment signed by the 224th Judicial
District Court of Bexar County, the Honorable Cathy Stryker, presiding on April 2, 2015
in Cause No. 2013-CI-10278; David Gillespie and Michael O’Brien v. A.L. Hernden and
Frederick R. Zlotucha . This appeal is to the Court of Appeals for the Fourth Court of
Appeals District of Texas in San Antonio.
31. The filing deadlines in the Texas Rules of Appellate Procedure demonstrate how
allowing O’Brien’s late “amended” notice of appeal hurts Hernden and Zlotucha. Under
Rule 26.1(d):
if any party timely files a notice of appeal, another party may file a notice of appeal within [the general deadline to file a notice of appeal that governs the case] or 14 days after the first filed notice of appeal, whichever is later. Tex. R. App. P. 26.1(d) (emphasis added). Even though the first notice of appeal was due
on July 1, it was not filed until July 3, 2015. See Exh. 15. Fourteen days from July 3,
2015 was July 17, 2015. But July 17, 2015 was more than three months before O’Brien
filed his “amended” notice of appeal. Under the plain language of the rules, Hernden and
Zlotucha were required to file their notice of cross appeal even before O’Brien filed his
“amended” notice of appeal. But the filing of the “amended” notice of appeal is the
development that triggered Hernden and Zlotucha’s need to file a cross appeal in the first
place. Surely the Rules cannot tolerate such an injustice. Tex. R. App. P. 2 (“a court
must not construe this rule [authorizing suspension of the Texas Rules of Appellate
Procedure] to . . . alter the time for perfecting an appeal in a civil case.”).
32. Even if this Court were to apply the extension authorized by Rule 26.3, that Rule
authorizes this Court to:
extend the time to file the notice of appeal if, within 15 days after the deadline for filing the notice of appeal , the party: (a) files in the trial court he notice of appeal; and (b) files in the appellate court a motion complying with Rule 10.5(b).
Tex. R. App. P. 26.3 (emphasis added). The “deadline” for O’Brien to file the notice of
appeal was July 1, 2015. See Exh. 15. Fifteen days from July 1, 2015 was July 16,
2015—more than three months before O’Brien filed his “amended” notice of appeal and
triggered Hernden and Zlotucha’s need to file a cross appeal. The result is the same even
if the “deadline” for Gillespie and O’Brien to file their notice of appeal was extended to
July 3, 2015. Since timely cross appealing is impossible according to the plain language
of the Rule in these circumstances, this Court should recognize that O’Brien’s “amended”
notice of appeal was untimely and strike it. See id. If this Court does not strike O’Brien’s late-filed “amended” notice of appeal, A.L.
Hernden and Frederick R. Zlotucha respectfully request that this Court grant their motion
to extend the deadline to file their notice of cross appeal under Texas Rule of Appellate
Procedure 26.3, and deem that their notice of cross appeal, which was filed with the
Bexar County District Clerk’s Office on November 19, 2015, was timely filed.
D. E VIDENCE IN S UPPORT OF M OTIONS 34. Hernden and Zlotucha present the following exhibits in support of this motion:
1. Plaintiffs’ Original Petition and Requests for Disclosure
2. Plaintiffs’ Traditional Motion for Partial Summary Judgment
3. Order Denying Plaintiffs’ Traditional Motion for Partial Summary Judgment
4. Defendants’ Combined No Evidence and Traditional Motions for Summary
Judgment
5. Order Granting Defendants’ Combined No Evidence and Traditional Motions
for Summary Judgment and Final Judgment
6. Motion to Reconsider Summary Judgment and in the Alternative Motion for
New Trial
7. Bexar County Centralized Docket Sheet
Notice of Appeal
July 6, 2015 Notice from Fourth Court of Appeals
July 28, 2015 Order of Fourth Court of Appeals
September 15, 2015 Order of Fourth Court of Appeals
Appellee’s [sic] Motion for Extension of Time
September 30, 2015 Notice from Fourth Court of Appeals
October 5, 2015 Notice and Order of Fourth Court of Appeals
Notice of Appearance of Appellate Counsel & Appellant’s Unopposed Motion
for Briefing Deadline Extension
October 21, 2015 Corrected Order of Fourth Court of Appeals
Amended Notice of Appeal
Notice of Cross Appeal
E. C ONCLUSION AND P RAYER For the foregoing reasons, Appellees A.L. Hernden and Frederick R. Zlotucha respectfully request that this Opposed Motion to Strike Untimely “Amended” Notice of
Appeal Filed Four Months After the Deadline, and, in the Alternative, Motion to Extend
Time to File Notice of Cross Appeal. Appellees further request all additional relief to
which they may be entitled, in equity or at law.
Respectfully submitted, /s/ Beth Watkins Beth Watkins State Bar No. 24037675 L AW O FFICE OF B ETH W ATKINS 926 Chulie Drive San Antonio, Texas 78216 (210) 225-6666—phone (210) 225-2300—fax Beth.Watkins@WatkinsAppeals.com Counsel for Appellees and Conditional Cross-Appellants A.L. Hernden and Frederick R. Zlotucha /s/ Frederick R. Zlotucha Frederick R. Zlotucha State Bar No. 24037675 L AW O FFICE OF F REDERICK R. Z LOTUCHA 222 E. Main Plaza San Antonio, Texas 78205 (210) 227-9877—phone (210) 227-8316—fax attyrickzlotucha@aol.com Pro Se
C ERTIFICATE OF C ONFERENCE I hereby certify that, on November 19, 2015, I e-mailed a copy of this Opposed Motion to
Strike Untimely “Amended” Notice of Appeal Filed Four Months After the Deadline, and, in the
Alternative, Notice of Cross Appeal to Ms. Kimberly Keller, counsel for Appellant. On
November 19, 2015, Ms. Keller responded that, on behalf of her clients, she was opposed to the
substance of this motion.
/s/ Beth Watkins Beth Watkins Counsel for Appellees and Conditional Cross-Appellants A.L. Hernden and Frederick R. Zlotucha C ERTIFICATE OF S ERVICE I hereby certify that, on November 19, 2015, I electronically served, via FileTime, my e-
filing service provider, a true and correct copy of the above document on the following counsel
of record:
Ms. Kimberly S. Keller
K ELLER S TOLARCZYK , PLLC
234 West Bandera Road #120
Boerne, Texas 78006
(830) 981-5000—phone
(888) 293-8580—fax
kim@kellsto.com
Attorney for Appellant
David Gillespie
/s/ Beth Watkins Beth Watkins Counsel for Appellees and Conditional Cross-Appellants A.L. Hernden and Frederick R. Zlotucha
[1] In this motion, Gillespie correctly referred to himself as the singular appellant sight times, and incorrectly referred to himself as the singular appellee four times. Exh. 12. Although Gillespie was confused about whether he was the appellant or the appellee, he was not confused about whether any other parties were aligned with him on appeal—he uniformly used the singular version of the appellant or appellee party designation. See