Opinion
09-24-00021-CV
06-20-2024
SYDNEY MURPHY, GUYLENE ROBERTSON, RONNIE VINCENT, MILT PURVIS, AND CHARLES THOMAS OVERSTREET, Appellants v. TYLER EPSTEIN, TRUSTEE OF THE ELMWOOD REVOCABLE TRUST, Appellee
On Appeal from the 411th District Court Polk County, Texas Trial Cause No. CIV22-0716
Before Golemon, C.J., Horton and Wright, JJ.
ORDER
PER CURIAM
On January 9, 2024, the trial court denied a plea to the jurisdiction filed by Appellants Sydney Murphy, Guylene Robertson, Ronnie Vincent, Milt Purvis, and Charles Thomas Overstreet. Appellants filed a notice of appeal that cited subsections (5) and (8) section 51.014 of the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(5), (8). The notice of appeal mentions that Appellants were sued in their personal and official capacities as elected officials of Polk County, Texas, and members of the Polk County Commissioners Court, but does not explicitly state that the notice of appeal is being made in their personal and official capacities.
Appellee Tyler Epstein, Trustee of the Elmwood Revocable Trust, filed a Motion to Dismiss for Lack of Jurisdiction and in the Alternative Motion to Lift Stay. Appellee contends Appellants filed the plea to the jurisdiction in their official capacities. After Appellants filed their plea to the jurisdiction, Appellee, seeking to prevent an accelerated appeal, filed a notice of nonsuit as to Appellants in their official capacities, leaving them remaining in the lawsuit in their personal capacities only. In his motion to dismiss, Appellee argues an accelerated appeal is not authorized by statute because section 51.014(a)(8) applies to parties in a governmental capacity and section 51.014(a)(5) applies only to an appeal from the denial of a motion for summary judgment based on immunity. See id. In their notice of appeal, Appellants cite Austin State Hospital v. Graham to assert their statutory right to an accelerated appeal from the order denying an assertion of immunity. See 347 S.W.3d 298, 301 (Tex. 2011) ("[A]n appeal may be taken from orders denying an assertion of immunity, as provided in section 51.014(a)(5), regardless of the procedural vehicle used.").
A notice of nonsuit is effective when filed. See Tex. R. Civ. P. 162. A dismissal order is ministerial. In re Bennett, 960 S.W.2d 35, 38 (Tex. 1997) (orig. proceeding). Although Appellee has discontinued his claims against Appellants in their official capacities, they have not been dismissed and thus remain parties to the suit.
It is therefore ordered that leave is granted to amend the notice of appeal to add Appellants in their personal capacities. See Tex. R. App. P. 25.1(g) (A notice of appeal may be amended to correct a defect or omission in an earlier filed notice.) The amended notice of appeal is due July 5, 2024. Appellee's motion to lift the stay is denied. See In re Geomet Recycling LLC, 578 S.W.3d 82,91-92 (Tex. 2019) (orig. proceeding) ("The court of appeals committed an error of law and thereby clearly abused its discretion when it authorized the trial court to conduct further trial-court proceedings in violation of the legislatively mandated stay of 'all other proceedings in the trial court.'"). The motion to dismiss the appeal remains pending before the Court and will be determined when the appeal is submitted to the court for an opinion on the merits.