Case Information

*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 1/5/2018 4:48:52 PM JEFFREY D. KYLE Clerk NO. 03-17-00365-CV THIRD COURT OF APPEALS JEFFREY D. KYLE 1/5/2018 4:48 PM AUSTIN, TEXAS 03-17-00365-cv *1 ACCEPTED ^[21650658] CLERK IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS

M ATEO C ORTEZ , AS R EPRESENTATIVE OF THE E STATE OF D EBORAH C ORTEZ ,

A PPELLANT ,

V .

S ANDRA F LESHER B ROWN ; C HARLOTTE F LESHER A SH ; C HARLENE F LESHER

J OHNSTON ; C ONNIE L OU K EITH B ARRY ; R ANDALL W AYNE D AVIS ; V IRGINIA

V ILLERS ; C HARLES R OBERTS ; L ISA A. S MITH ; P ATRICIA C HAPMAN ; B ETTY J.

M ARKS W EBB ; J AMES B ERL M ARKS ; L INDA M URRAY ; T HOMAS W AYNE M ARKS ; AND D ONALD L EMAN W HITED , A PPELLEES .

Appeal from the Probate Court No. 1 of Travis County, Texas, Trial Court Cause No. C-1-PB-16-002348 APPELLANT’S REPLY TO APPELLEES ’ RESPONSE TO APPELLANT’S MOTION FOR LEAVE TO AMEND NOTICE OF APPEAL

Appellant Mateo Cortez, as Representative of the Estate of Deborah Cortez, files this reply to Appellees’ Response to Appellant’s Motion for

Leave to Amend Notice of Appeal, respectfully showing the Court as follows:

Appellant Mateo Cortez has demonstrated to the Court that he has standing to appe al the trial court’s sanctions order against his attorneys,

William Brotherton and the Brotherton Law Firm (collectively “Brotherton”) ,

see Cortez Resp. to Motion to Dismiss, but also seeks leave to amend his

notice of appeal to expressly include Brotherton pursuant to Texas Rule of

Appellate Procedure 25.1. In response, Appellees ask the Court to narrowly

limit Rule 25.1 to permit correction of only clerical or typographical errors.

Appellees’ Resp. at 2 (citing Galbraith v. Williams Cos. , No. 01-15-01084-

CV, 2017 WL 2872306 (Tex. App. — Houston [1st Dist.] July 6, 2017, pet.

filed)). The fact that courts allow such amendments does not limit the rule’s

relief to such nunc pro tunc circumstances. ^[1]

The Texas Supreme Court has consistently held that the Rules of Appellate Procedure should be interpreted liberally to allow appellate courts

to reach the merits of an appeal whenever possible. Warwick Towers Council

of Co-Owners ex rel. St. Paul Fire & Marine Ins. Co. v. Park Warwick, L.P. ,

244 S.W.3d 838, 839 (Tex. 2008) (insurer asserting rights to subrogation in

action by condominium owners against hotel owners to recover for alleged *3 property damage from flooding did not waive right to appeal by filing notice

of appeal in its insured ’ s name). To further that principle, the court has given

appellants broad latitude to amend their perfecting documents. If 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

by the rules to perfect the appeal. Id. ; Grand Prairie Indep. School Dist. v.

Southern Parts Imports, Inc. , 813 S.W.2d 499, 500 (Tex. 1991). Courts of

appeals have honored this instruction in permitting amendment to add an

inadvertently unnamed appellant to a notice of appeal. See, e.g. , City of Hous.

v. Little Nell Apartments, L.P. , 424 S.W.3d 640, 644-45 (Tex. App. Houston

[14th Dist.] 2014, pet. denied) (granting leave to amend notice of appeal to

add individual defendant where the city meant to appeal on behalf of both

parties but only included one in notice); Kim v. Scarborough , 2004 WL

1574598 at *1 (Tex. App. — Houston [14th Dist.] 2003, no pet.) (where notice

of appeal was filed in the name of the non-party husband of a party in the

underlying suit, amendment permitted to avoid disposing of the appeal on a

technicality);

Applying these principles in a case very similar to this one, the San Antonio Court of A ppeals granted appellant’s motion for leave to amend her

notice of appeal to include her sanctioned attorney. Loeffler v. Lytle Indep.

Sch. Dist. , 211 S.W.3d 331, 338-39 (Tex. App. — San Antonio 2006, pet.

denied). There, the trial court granted summary judgment against appellant

Katherine Loeffler on her claims to disputed real property and sanctioned

Loeffler and her attorney, Ted Kenyon, for filings the court deemed frivolous.

Id. Kenyon timely filed Loeffler’s notice of appeal naming Loeffler as

appellant, but did not include his own name. Id. at 338. Kenyon then filed an

opening brief challenging the sanctions against him and Loeffler. Id. The brief

expressly addressed why Kenyon’s actions were not sanctionable and sought

relief from the sanctions order on behalf of both Loeffler and Kenyon. See

Appellant Loeffler’s Br., Loeffler v. Lytle Indep. Sch. Dist. , No. 4-04-00443-

CV, 2004 WL 2386235 at *36-39, filed Oct. 7, 2004.

A month after filing her opening brief, Loeffler filed an opposed motion for leave to file an amended notice of appeal seeking to add Kenyon as a party

pursuant to Rule 25.1(f). Loeffler , 211 S.W.3d at 338. The court of appeals

found that Loeffler’s brief supported the conclusion that Kenyon’s name was

accidentally omitted from the notice of appeal and granted Loeffler leave to

amend the notice to include it. Id.

Here, in addition to having specifically amended the original notice of appeal to include the post-judgment sanctions order against Brotherton, and

specifically referencing the sanctions order in the docketing statement,

Appellant’s opening brief expressly and comprehensively challenges the

sanctions against Brotherton and specifically addresses why Brotherton’s

actions in the trial court are not sanctionable. See Appellant’s Br. at 1, 12 -13,

14, 31-42. Brotherton has made a bona fide attempt to invoke this Court’s

jurisdiction over its challenge to the sanctions order. Leave to amend the

notice of appeal to add Brotherton’s name is warranted.

The remaining cases cited in Appellees’ response do not support a contrary conclusion. In Mustafa v. Asim , No. 03-17-00476-CV, 2017 WL

5560084 (Tex. App. — Austin, Nov. 15, 2017, no pet.), where the notice of

appeal was addressed to a specific nonfinal interlocutory order, this Court

correctly rejected an amendment seeking to appeal a different order.

Similarly, in Fain v. Georgen , No. 03-17-00313-CV, 2017WL 4766654 (Tex.

App. — Austin, Oct. 19, 2017, no pet.), appellant noticed the appeal of an

unappealable interlocutory order, then sought to amend the notice to include

a completely different order, an earlier-appealed summary judgment order

that this Court had already dismissed. Finally, in In re Curtis , 465 S.W.3d

364-66 (Tex. App. —Texarkana 2015, pet. dism’d), the only suggestion that a

second, aligned but unnamed party was seeking appellate review was the

attorney’s signature on the no tice of appeal indicating his representation of

both the named appealing party and the unnamed party the amendment sought

to add.

Here, the sanctions order, which specifically and exclusively names Brotherton, is itemized in the notice of appeal and the docketing statement.

The docketing statement identifies the sanctions as one of the issues on appeal,

and it also identifies the amount of the monetary sanctions against only

Brotherton. The challenge to the sanctions order against Brotherton was fully

and particularly briefed. Despite the inadvertent omission of its name from

the notice of appeal, Brotherton displayed an intention to be a party to the

appeal at every step. For these same reasons, Appellees’ claim that they did

not know that reversal of the sanctions order would be sought until after the

opening brief was filed, see Appellees’ Resp . at 4, is simply not credible.

Finally, Appellees argue that they would be prejudiced by the filing of a separate appellant’s brief by Brotherton and that gr anting leave to amend

here would open the floodgates for such additional briefs in “future appeals.”

Appellees’ Resp. at 4 -5 & n.1. This groundless speculation does not support

denial of Appellant’s respectful request to amend the notice of appeal.

Brotherton has specifically stated that it wishes to join Appellant in the notice

of appeal and in the already filed opening brief. Appellant’s Motion for Leave

to Amend Notice of Appeal at 5. There will be no additional brief or briefing

other than the ordinary appellants ’ reply. In short, Appellees can show no

genuine prejudice or disadvantage to them if the notice is amended.

C ONCLUSION Because Brotherton’s name was inadvertently omitted from the notice of appeal, because a bona fide attempt wa s made to invoke the Court’s

jurisdiction over Brotherton’s appeal of the sanctions order, and because

amending the notice will not delay the proceeding or unduly burden this Court

or Appellees, we respectfully ask the Court to grant Cortez’s motion for le ave

to amend the notice of appeal to include Brotherton’s name on this appeal and

to allow Brotherton to join the brief submitted by Appellant Cortez.

Respectfully submitted, BROTHERTON LAW FIRM By: /s/ William J. Brotherton William J. Brotherton State Bar No. 00789989 Shawn M. Brotherton State Bar No. 24064956 BROTHERTON LAW FIRM 2340 FM 407, Suite 200 Highland Village, TX 75077 Phone: 972-317-8700 Fax: 972-317-0189 Susan S. Vance State Bar No. 24036562 susan@svancelaw.com SUSAN VANCE LAW PLLC 201 W. 5th Street, Suite 1100 Austin, Texas 78701 Phone: 512-736-7295 Fax: 866-523-5449 ATTORNEYS FOR APPELLANT *9 I. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Appellant’s Reply to Appellees’ Response to Appellant’s Motion for Leave to Amend

Notice of Appeal was forwarded, on this 5 th day of January, 2018, to the

following:

Amanda G. Taylor Craig Hopper

Beck Redden LLP Brian T. Thompson

515 Congress Avenue, Suite 1900 Claire D. East 400 W. 15 th Street, Suite 408

Austin, TX 78701

Austin, TX 78701 Attorneys for Appellees: Linda Lou Marks Murray, individually; Charlene

Rae Flesher Johnston; Charlotte Fae Flesher Ash; Sandra Kay Flesher

Brown; Thomas Wayne Marks; James Berl Marks; Betty J. Webb; Patricia

A. Chapman; Lisa A. Smith; Charles Bruce Roberts, Jr., Virginia Ann

Roberts Villers; Randall Wayne Davis; Sherry Lynn Whited Salsbury; Terry

Lee Whited; Michael Ray Whited; Donald Leaman Whited; and Connie Lou

Keith Barry

/s/ William J. Brotherton William J. Brotherton

[1] Nor do the rules limit such relief to pro se parties like Galbraith, as Appellees suggest. All of the other cases citied in support of Appellant’s position herein, in which leave to amend was granted, involved represented parties.