Opinion
NO. 01-11-00492-CV
01-26-2012
ARCHIE C. BRANCH, SR., Appellant v. LORETTA YOUNG BRANCH, Appellee
On Appeal from the 300th District Court of
Brazoria County, Texas
Trial Court Cause No. 62037
MEMORANDUM OPINION
Appellee, Loretta Young Branch, has filed a motion to dismiss the appeal, arguing that (1) no valid notice of appeal was filed because the person signing the notice of appeal is not an attorney or a party to the suit, and (2) appellant's death while the case was on appeal renders the appeal moot. Because we find the first ground to be meritorious, we dismiss the appeal.
On May 3, 2011, the trial court signed a final judgment granting Archie Branch, Sr. and Loretta Young Branch a divorce and dividing their marital property. On May 31, 2011, a notice of appeal was purportedly filed by Archie. However, the notice of appeal is signed by "Sheila A. Howard" and indicates that "Sheila Howard Thompson, Daughter of Archie C. Branch, Sr., Pro Se" is making an appearance on Archie's behalf. This Court then received information that Archie had died on June 18, 2011.
Texas Rule of Appellate Procedure 7.1(a)(1) provides that a civil appeal may proceed upon the death of the appellant. See TEX. R. APP. P. 7.1(a)(1) ("If a party to a civil case dies after the trial court renders judgment but before the case has been finally disposed of on appeal, the appeal may be perfected, and the appellate court will proceed to adjudicate the appeal as if all parties were alive ..."). When an appellant dies before perfecting an appeal, the deceased party's heir or executor may perfect the appeal. See Ryder v. Ryder, No. 01-10-00294-CV, 2001 WL 5026397 (Tex. App.—Houston [1st Dist.] Oct. 20, 2011, no pet. h.) (citing Casillas v. Cano, 79 S.W.3d 587, 590 (Tex. App.—Corpus Christi 2002, order).
However, in this case, Archie was not deceased at the time the notice of appeal was filed and signed by Sheila, thus Sheila was not an heir. While a layperson has the right to represent themselves, a layperson does not have the right to represent others. Paselk v. Rabun, 293 S.W.3d 600, 606 (Tex. App.—Texarkana 2009, pet. denied). Sheila was not a party to the judgment, was not Archie's attorney, and the record is devoid of any evidence to show that she had the authority to file a notice of appeal on Archie's behalf. Additionally, "[a] party not represented by counsel must sign any document that the party files[.]" TEX. R. APP. P.9.1(b). The notice of appeal was signed by Sheila, not Archie, even though Archie was not deceased at the time of its filing.
Because Archie did not file a notice of appeal, we dismiss the appeal for want of jurisdiction.
PER CURIAM Panel consists of Justices Jennings, Sharp, and Brown.