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recognizing that an amended notice of appeal naming the lawyer as an additional appellant apprised the court of his intent to challenge sanctions assessed solely against him and addressing the merits of the lawyer's sanctions issues
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NO. 01–14–00599–CV
10-06-2015
St. Mina Auto Sales, Inc. and Victor S. Elgohary, Appellants v. Najwa Al–Muasher d/b/a American Auto Sales and d/b/a America Auto Sales 1.1, Appellee
Victor S. Elgohary, Houston, TX, for Appellant. Omar Misleh, Houston, TX, for Appellee.
Victor S. Elgohary, Houston, TX, for Appellant.
Omar Misleh, Houston, TX, for Appellee.
OPINION
Jane Bland, Justice
In a dispute between two used car dealers, we determine whether (1) the trial court properly modified its dismissal order to reflect the parties' settlement agreement, (2) our court has appellate jurisdiction over an attorney's challenge to the trial court's monetary sanction assessed against him, individually, and should permit the attorney's amended notice of appeal, and (3) the trial court acted within its discretion in assessing the sanction. We conclude that the trial court properly modified its dismissal order. We further conclude that we have appellate jurisdiction over the attorney's challenge to the trial court's sanctions order, but we reject his challenge on the merits. We therefore affirm.
Background
St. Mina Auto Sales, Inc. (“Mina”) purchased a 1996 Cadillac Deville from Najwa Al–Muasher d/b/a American Auto Sales and d/b/a American Auto Sales 1.1 (“AAS”). Mina later sued AAS for breach of contract and misrepresentation, alleging that the Cadillac was not roadworthy and that AAS improperly had refused to tender the car's title to Mina. Mina claimed about $4,000 in repair expenses as damages and sought a declaration of title. AAS counterclaimed against Mina for breach of contract and conspiracy, alleging that Mina had paid only $2,150 of the agreed $4,200 purchase price for the car and had conspired with Cinco Car Care, Inc. to assert a fraudulent mechanic's lien against the car's title. AAS also sued Cinco in a third-party petition, but it never served Cinco with the lawsuit. Victor S. Elgohary represented Mina in the case.
Mina and AAS then settled their dispute. In connection with their agreement to settle, Mina and AAS prepared and signed an “Agreed Joint Motion to Dismiss” and a proposed “Order Granting Agreed Motion to Dismiss,” to be filed with the trial court. The agreed motion recited that Mina and AAS had resolved all matters in controversy between them and that all of the claims and causes of action against each other should be dismissed with prejudice. The agreed proposed order granted the motion and dismissed all claims by and between Mina and AAS with prejudice. Neither the agreed motion nor the proposed order addressed AAS's claims against Cinco.
After executing the settlement agreement, AAS nonsuited its claims against Cinco without prejudice. SeeTex.R. Civ. P. 162. The trial court signed an order nonsuiting AAS's claims against Cinco without prejudice.
Mina's counsel, Elgohary, then filed an “Agreed Joint Motion to Dismiss,” and a proposed order with the trial court. But Elgohary's motion and order were different from the motion and proposed order that AAS had approved in connection with the settlement. Notably, Elgohary had added language that AAS also had agreed to dismiss its claims against Cinco “with prejudice.” Under the impression that the parties had approved the proposed dismissal order, the trial court signed it.
AAS then discovered the discrepancy between the terms of the signed order and those of the agreed-to proposed order. After efforts to resolve the issue failed, it moved to set aside the trial court's dismissal order, asserting that Elgohary had intentionally altered the terms of the agreed joint motion to dismiss and order after AAS had approved them. AAS pointed out that none of the settlement-related documents and filings to which AAS had agreed mentioned Cinco or AAS's claims against Cinco. AAS moved for sanctions against Elgohary for filing the altered documents with the court.
In a hearing on AAS's motion, Elgohary admitted that he had altered the agreed joint motion and proposed order to include Cinco's dismissal with prejudice. After the hearing, the trial court modified its dismissal order to delete the reference to Cinco. The court further ordered Elgohary to pay $450 to AAS within 30 days as a sanction. Mina moved for a new trial, which the trial court denied.
Discussion
I. Modification of the Judgment
On appeal, Mina contends that the trial court erred in denying its motion for new trial, contending that the trial court erred in modifying its dismissal order to remove Cinco. We review the trial court's denial of a motion for new trial for an abuse of discretion. Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex.1983); Xenos Yuen v. Fisher, 227 S.W.3d 193, 204 (Tex.App.—Houston [1st Dist.] 2007, no pet.). An abuse of discretion occurs when the trial court acts without reference to any guiding rules or principles, that is, when its action is arbitrary or unreasonable. Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex.2004) (upholding trial court's sanctions order). During its plenary power, a trial court can vacate, modify, correct or reform its judgment. Tex. R. Civ. P. 329b(d); Transam. Leas. Co. v. Three Bears, Inc., 567 S.W.2d 799, 800 (Tex.1978); Bryan v. Resolution Trust Corp., 823 S.W.2d 433, 434 (Tex.App.—Houston [1st Dist.] 1992, writ dism'd w.o.j.). Mina contends that the original dismissal fully incorporated the terms of the parties' settlement with each other, and thus AAS lacks a basis for challenging it. Mina fails to acknowledge, however, that the original dismissal included—without AAS's knowledge or approval—an additional term to which AAS had not agreed: the dismissal with prejudice of AAS's claims against Cinco.
AAS's brief designates some of its responsive contentions as “cross points,” but it does not seek relief that would alter the trial court's judgment. See Tex. R. App. P. 25.1(c); cf. City of Houston v. Boyle, 148 S.W.3d 171, 175 n. 5 (Tex.App.— Houston [1st Dist.] 2004, no pet.) (declining to address “cross-points” in appellee's brief by which he sought to alter the trial court's rulings because appellee did not file notice of appeal). We review these issues as responsive arguments in support of the judgment under review.
Based on the evidence adduced in the hearing on AAA's motion to set aside the dismissal order, and Elgohary's admission that he altered the parties' approved motion and proposed order before he filed them with the court, the trial court correctly modified its dismissal order to accurately reflect the parties' agreement. See Bryan, 823 S.W.2d at 434–35 (court authorized to enter modified judgment to correctly reflect approved final judgment of parties); see also Lawrence v. Kohl, 853 S.W.2d 697, 701 (Tex.App.—Houston [1st Dist.] 1993, no writ) (unpublished part of opinion available on Westlaw) (“[T]he court has no power to supply terms, provisions, or essential details not previously agreed to by the parties.” (citing Dodson v. Seymour, 664 S.W.2d 158, 161 (Tex.App.—San Antonio 1983, no writ)). Further, AAS had nonsuited its claims against Cinco without effecting service. Cinco had never appeared and, after the nonsuit, Cinco was not even nominally a party to the suit. SeeTex. R. Civ. P. 124; CHCA Woman's Hosp., L.P. v. Lidji, 369 S.W.3d 488, 492 (Tex.App.—Houston [1st Dist.] 2012) (“A voluntary nonsuit ‘extinguishes a case or controversy from the moment the motion for nonsuit is filed ....’ ”), aff'd, 403 S.W.3d 228 (Tex.2013); In re Green Oaks Hosp. Subsidiary, L.P., 297 S.W.3d 452, 456 (Tex.App.—Dallas 2009, orig. proceeding) (holding that trial court had no jurisdiction to render judgment against party who “was not served with process, was not represented by counsel and did not otherwise appear”). Accordingly, we hold that the trial court acted within its discretion in denying Mina's motion for new trial.
II. Appellate Jurisdiction and the Sanction Award
Elgohary challenges the $450 monetary sanction that the trial court assessed against him, individually. He contends that (1) the evidence does not support a finding of bad faith or conscious wrongdoing; (2) AAS did not incur any attorney's fees due to his misconduct; and (3) the trial court's failure to issue findings of fact to support the imposition of sanctions requires reversal of the award. We initially determine whether we have jurisdiction to decide Elgohary's individual appeal; concluding that we do, we in turn address the merit of his challenges to the sanction that the trial court imposed against him.
A. Elgohary's Notice of Appeal
Mina timely filed a notice of its appeal, naming Mina as the only appellant, on July 18, 2014. Elgohary amended Mina's notice of appeal and filed a docketing statement on October 6, 2014, before the appellant's brief was due. SeeTex.R.App. P. 25.1(g) (“[a]n amended notice of appeal correcting a defect or omission in an earlier filed notice may be filed in the appellate court”). The amended notice of appeal named Elgohary individually as an additional appellant. The initial notice of appeal conferred appellate jurisdiction over all of the parties to the trial court's order, including Elgohary, who was named in it. SeeTex.R.App. P. 25.1(b) (“The filing of a notice of appeal by any party invokes the appellate court's jurisdiction over all parties to the trial court's judgment or order appealed from.”).
Accordingly, we have jurisdiction over his appeal, and may, within our discretion, hear it. See id. (“Any party's failure to take any other step required by these rules, including the failure of another party to perfect an appeal ... does not deprive the appellate court of jurisdiction but is ground only for the appellate court to act appropriately, including dismissing the appeal.”). Rule 25.1 vests the appellate court with the discretion to consider an amended notice of appeal in a case in which any notice of appeal has already been filed. An amended notice, however, “is subject to being struck for cause on the motion of any party affected by the amended notice.” SeeTex.R.App. P. 25.1(g). While not a matter of right, the rule eliminates any jurisdictional bar to the consideration of a late-filed notice in a case in which one party has appealed the trial court's order.
In this case, Elgohary's later-filed amended notice of appeal—filed within six weeks of filing the original notice and two months before the original deadline for filing the appellant's brief—apprised our court and the parties of Elgohary's intent to challenge the sanctions assessed solely against him. AAS did not move to strike Elgohary's amended notice, nor did it otherwise claim unfair surprise. The appellate rules, their underlying policy, and the circumstances surrounding the notice of appeal's amendment in this case favor reviewing Elgohary's appeal on its merits. See Perry v. Cohen, 272 S.W.3d 585, 587 (Tex.2008) (per curiam) (“[A]ppellate courts should reach the merits of an appeal whenever reasonably possible.”); cf. Braden v. Downey, 811 S.W.2d 922, 928 & n. 6 (Tex.1991) (addressing merits of mandamus petition seeking relief from sanctions imposed on both party and his attorney because no jurisdictional bar prevented attorney from being added as relator to mandamus proceeding).
Warwick Towers Council of Co–Owners v. St. Paul Fire Insurance Co., 244 S.W.3d 838 (Tex.2008), further supports our application of Rule 25.1 to reach the merits of Elgohary's appeal. There, the Supreme Court allowed an amended notice naming the insurance company where the initial notice of appeal had named only the insured. In the trial court in that case, the insured hotel sought dismissal of St. Paul's subrogation claim, contending that a contractual waiver provision applied to it. Id. at 839. After the hotel prevailed, it settled the claims brought by the condominium association against it. See id. The Court observed that St. Paul had named its insured as the appellant in its notice of appeal but had properly identified itself as the appellant in the docketing statement. See id. On that showing, the Court held that St. Paul had “made a bona fide attempt to appeal” and that the court of appeals “erred in not allowing St. Paul to amend and in not reaching the merits of St. Paul's appeal.” Id. at 840.
The dissent relies on Bahar v. Baumann, No. 03–09–00691–CV, 2011 WL 4424294 (Tex.App.—Austin 2011, pet. denied), to argue that we should reject Elgohary's amended notice of appeal. In Bahar, the Austin Court of Appeals declined to grant leave to appeal to an attorney who, like Elgohary in this case, sought to amend the notice of appeal filed on behalf of the client to include his own sanction appeal. The Austin Court of Appeals' reasoning in Bahar, however, is flawed because it applied a derivative standing analysis to determine its appellate jurisdiction, relying on a Supreme Court decision that predated the 1997 amendments to the appellate rules. See 2011 WL 4424294, at *2 (citing Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444–45 (Tex.1993)). When Texas Association of Business was decided, however, the Texas Rules of Appellate Procedure were silent on whether the filing of a timely notice of appeal conferred appellate jurisdiction over all of the parties to the trial court's judgment or order. Now, the appellate rules provide that the filing of a notice of appeal “by any party” invokes appellate jurisdiction “over all parties to the trial court's judgment or order.” SeeTex.R.App. P. 25.1(b). Rule 25.1(b) clarifies that, as long as any party has timely filed a notice of appeal, an appellate court has jurisdiction over any party aggrieved by the trial court's judgment. See id. Because an appellate court gains jurisdiction over all parties to the trial court's judgment once a timely notice of appeal has been filed, the court of appeals' reliance in Bahar on standing principles to analyze appellate jurisdiction was misplaced.
The Bahar court also erred in distinguishing Warwick Towers “because [the insurer's] interests were not merely ‘aligned’ with the Council's, but rather the interests of the two entities were legally united and joined” as subrogee and subrogor. 2011 WL 4424294, at *3. Bahar correctly observed that subrogee and subrogor generally share identical interests. In Warwick Towers, however, St. Paul sought to amend the notice of appeal to contest the lower court's rejection of its subrogation claim: for purposes of the appeal, its interests were different from its insured. See 244 S.W.3d at 839. Because Bahar places undue emphasis on standing based on pre–1997 authority and unduly narrows the holding in Warwick Towers, we decline to follow Bahar here.
The circumstances in Crofton v. Amoco Chemical Co., No. 01–01–00526–CV, 2003 WL 21297588 (Tex.App.—Houston [1st Dist.] May 30, 2003, pet. denied), are also different from those presented here. In Crofton, the appellants attempted to amend their notice of appeal a second time—four months after filing the original notice—to add a plaintiff whose name was missing from the appellate caption. Id. at *3. The appellees responded with a motion to strike that notice, invoking Texas Rule of Appellate Procedure 25.1(g), which allows the appellate court to strike an amended notice “for cause on the motion of any party affected by the amended notice.” Id.; Tex.R.App. P. 25.1(g). Id. The appellants in Crofton did not respond to the motion. See id. The decision to strike the amendment in Crofton, at the request of the appellees' unopposed motion to strike was within this court's discretion for good cause shown, as the rule contemplates. See id.
The plain text of Rule 25.1(b) is purposeful in its language: when any party timely appeals, we have jurisdiction over all parties to the judgment. Rule 25.1(g) states that an amended notice of appeal “may be filed in the appellate court.” This rule is in the passive, and not limited to an amended notice of appeal filed by the original appellant. We address latecomers to the appellate fray as a matter of procedure, balancing the relative equities and weighing the circumstances of the individual case. Rule 25.1 keeps the appellate courts out of the jurisdictional swamp with a bright line rule. But even were we to wade into it, the factors present here demonstrate that Elgohary made a bona fide attempt to invoke appellate court jurisdiction. The original notice of appeal filed by Elgohary on behalf of his client specifically refers to the order granting AAS's motion for sanctions against Elgohary. The docketing statement recites that the disposition in the trial court included $450 in attorney's fees, the amount of the sanction assessed solely against Elgohary. Elgohary amended the notice of appeal and docketing statement to identify himself as an additional appellant within six weeks of filing the original notice and nearly two months before the original date on which the appellants' briefs were due. AAS did not move to strike the amended notice. Under these circumstances, we consider the merits of Elgohary's sanctions appeal. See Perry, 272 S.W.3d at 587 (“[A]ppellate courts should reach the merits of an appeal whenever reasonably possible.”); cf. Braden, 811 S.W.2d at 928 & n. 6 (addressing merits of mandamus petition seeking relief from sanctions imposed on both party and his attorney because no jurisdictional bar prevented attorney from being added as relator to mandamus proceeding; court expressed no opinion on whether attorney must perfect separate appeal apart from that perfected by client to procure review of sanctions on appeal).
The policy animating the appellate rules disfavors disposing of appeals based upon harmless procedural defects. We construe the rules reasonably, yet liberally, so that the right to appeal is not lost by imposing requirements not absolutely necessary to achieve the purpose of a rule. Verburgt v. Dorner, 959 S.W.2d 615, 616–17 (Tex.1997); see Maxfield v. Terry, 888 S.W.2d 809, 811 (Tex.1994) (holding that the rules should be interpreted liberally to give appellate courts the opportunity to reach the merits of an appeal whenever possible). We “should not dismiss an appeal for a procedural defect whenever any arguable interpretation of the Rules of Appellate Procedure would preserve the appeal.” Verburgt, 959 S.W.2d at 616; see also Nathan E. Hecht & E. Lee Parsley, Procedural Reform: Whence and Whither, Matthew Bender CLE, Practicing Law Under The New Rules Of Appellate Procedure 1–12 at § 1.02(b) & (c) (Nov.1997) (explaining that most recent revision to rules was “intended to make appellate practice more user-friendly, refocus appellate practice on the merits rather than technicalities, and reduce cost and delay”), quoted in Steven K. Hayes, Could You Be A Little More Specific ?, 66 The Advoc. (Tex.) 196, 227 (2014).
Accordingly, we turn to the merits of Elgohary's appeal.
B. The Sanction
Elgohary contends that the trial court had no evidence upon which it could base the sanction award assessed against him and that it failed to issue findings of fact in connection with its order.
Standard of review
We review a trial court's decision to impose sanctions for an abuse of discretion. Low v. Henry, 221 S.W.3d 609, 614 (Tex.2007). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner “without reference to guiding rules and principles.” See Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex.1999). When reviewing matters committed to the trial court's discretion, we may not substitute our own judgment for that of the trial court. Bowie Mem'lHosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002). A trial court does not abuse its discretion merely because it decides a discretionary matter differently than an appellate court would in a similar circumstance. Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 858 (Tex.App.—Houston [1st Dist.] 2006, no pet.).
Analysis
The parties agree that the trial court had the inherent power to assess sanctions upon a finding that Elgohary committed bad-faith abuse of the judicial process. See, e.g., In re Tex. Dept. of Family & Protective Servs., 415 S.W.3d 522, 529 (Tex.App.—Houston [1st Dist.] 2013, orig. proceeding) (“A trial court has inherent power to sanction bad faith conduct during the course of litigation that interferes with the administration of justice or the preservation of the court's dignity and integrity.”); Ezeoke v. Tracy, 349 S.W.3d 679, 685 (Tex.App.— Houston [14th Dist.] 2011, no pet.) (“Trial courts have inherent power to impose sanctions for bad faith abuse of the judicial process even when the targeted conduct is not expressly covered by a rule or statute.” (citing Eichelberger v. Eichelberger, 582 S.W.2d 395, 398–99 (Tex.1979)).
AAS's motion for sanctions asserted that Elgohary, without AAS's knowledge or consent, altered the proposed order granting the agreed motion to dismiss to make it falsely appear to the trial court that AAS had agreed to dismiss Cinco from the lawsuit with prejudice. This representation contradicted counsels' discussions about the content of the proposed order. Elgohary admitted in open court that he altered the documents without AAS's knowledge or consent and, by attaching AAS's signature page from the authentic agreed motion, had represented to the trial court that AAS had approved and reviewed the documents. When AAS discovered the discrepancies in the documents, it notified Elgohary and gave him an opportunity to correct the matter, but Elgohary did not respond until after AAS moved to modify the dismissal and request sanctions.
Elgohary complains that the trial court failed to make specific findings to support its imposition of sanctions. When a trial court imposes sanctions under its inherent power, it should make specific findings to support its conclusion that the conduct complained of significantly interfered with its legitimate exercise of its core functions; the absence of findings, however, does not automatically require reversal. See Harmouch v. Rassner, No. 01–10–00367–CV, 2011 WL 1435008, at *2 (Tex.App.—Houston [1st Dist.] Apr. 14, 2011, no pet.) (acknowledging lack of express findings to support sanctions, but reviewing entire record before determining that trial court erred based on lack of evidence plaintiff acted dishonestly or maliciously to interfere with trial setting) (citing Houtex Ready Mix Concrete & Materials v. Eagle Constr. & Envt'l Servs., L.P., 226 S.W.3d 514, 524 (Tex.App.—Houston [1st Dist.] 2006, no pet.)).
Here, the entire record reveals with certainty the basis for the sanction against Elgohary. To show bad faith requires evidence of conscious wrongdoing for a dishonest, discriminatory, or malicious purpose. Mattly v. Spiegel, Inc., 19 S.W.3d 890, 896 (Tex.App.—Houston [14th Dist.] 2000, no pet.). Elgohary's admission establishes that he consciously misrepresented the terms of the parties' agreement in the proposed order he submitted to the court in an attempt to enlarge the scope of the opponent's concessions. We have upheld inherent-power sanctions under similar circumstances. See Lawrence, 853 S.W.2d at 700 (upholding imposition of sanctions under court's inherent power where counsel admitted that he had submitted and procured, under unexplained circumstances, judge's signature on form order awarding him sanctions from opposing party and his attorney without notice or hearing on sanctions motion, and, once error was discovered, counsel failed to come forward to request order be set aside until, at bench conference held over a month after erroneous order was signed, counsel agreed that error had been made); see also Houtex, 226 S.W.3d at 524 (upholding imposition of sanctions under inherent power where attorney failed to notify opposing counsel he would be absent from hearing even though attorney knew days in advance he would be unavailable, and, as result, opposing counsel needlessly made 720–mile round trip to attend hearing). Elgohary was apprised of the complained-of conduct in AAS's motion for sanctions, upon which the trial court heard evidence. Because the specific basis for the sanction is evident from the record, we hold that the trial court's failure to include a description of the conduct in its order is harmless error. SeeTex. R. App. P. 44.1.
Finally, Elgohary asserts that the $450 amount is not supported by evidence of opposing counsel's attorney's fees. The record belies this assertion. At the hearing on the motion for modification and sanctions, the trial court inquired into opposing counsel's fees. Opposing counsel stated that he spent approximately two and a half hours on preparing and filing the motion and in attending the hearing, and he informed the court that his hourly fee rate was $225. The modest assessment of sanctions in the form of $450 in attorney's fees is reasonably related to the extra measures that AAS was required to undertake in alerting the court to Elgohary's misconduct and having the misstatement corrected. We hold that the trial court acted within its discretion in imposing the $450 in sanctions on Elgohary.
Frivolous Appeal
In its brief, AAS contends that Mina's appeal is frivolous and asks this Court $5,000.00 as a sanction. SeeTex.R.App. P. 45 (damages for frivolous appeals in civil cases). After considering the record, briefs, and other papers filed, we may award a prevailing party “just damages” if we objectively determine that an appeal is frivolous. Id.; Smith v. Brown, 51 S.W.3d 376, 381 (Tex.App.—Houston [1st Dist.] 2001, pet. denied). An appeal is frivolous when the record, viewed from the perspective of the advocate, does not provide reasonable grounds for the advocate to believe that the case could be reversed. Smith, 51 S.W.3d at 381. The decision to grant appellate sanctions is a matter of discretion that an appellate court exercises with prudence and caution. Id. After a review of the record and briefing, we decline to award appellate sanctions.
III. Conclusion
We affirm the judgment of the trial court. We deny AAS's request for sanctions.
Justice Jennings, concurring in part and dissenting in part.
Jennings, Justice, concurring in part and dissenting in part.
I join the majority in its holding that the trial court did not err in denying the new-trial motion of appellant, St. Mina Auto Sales, Inc. (“Mina”). I also join in the majority's denial of the request for appellate sanctions by appellee, Najwa Al–Muasher d/b/a American Auto Sales and d/b/a American Auto Sales 1.1 (“AAS”). However, because this Court should dismiss the appeal of appellant, Victor S. Elgohary, and the majority disregards binding precedent in concluding otherwise, I respectfully dissent from the portion of this Court's judgment affirming the trial court's award of sanctions against Elgohary.
Tex. R. App. P. 45 (allowing appellate court to award “just damages” for frivolous appeals in civil cases).
See Crofton v. Amoco Chem. Co., No. 01–01–00526–CV, 2003 WL 21297588 (Tex.App.—Houston [1st Dist.] May 30, 2003, pet. denied) (mem. op.).
In his appeal, Elgohary, Mina's trial and appellate counsel, contends that the trial court erred in sanctioning him and awarding AAS $450 for his filing of an unauthorized and altered version of an “Agreed Joint Motion to Dismiss” and accompanying order.
Texas courts recognize that nonparties have a right to appeal from a judgment if they clearly have an interest in the judgment and are bound by it. See Torrington Co. v. Stutzman, 46 S.W.3d 829, 843 (Tex.2000) (stating person whose interest prejudiced by error in judgment has standing to appeal); In re Evans, 130 S.W.3d 472, 478–79 (Tex.App.—Houston [14th Dist.] 2004, orig. proceeding) (holding nonparty with interest in judgment had right to appeal); Jernigan v. Jernigan, 677 S.W.2d 137, 140 (Tex.App.—Dallas 1984, no writ) (holding nonparty bound by judgment entitled to appeal).
However, in addition to standing, any party “seek[ing] to alter the trial court's judgment or other appealable order” must also timely file a notice of appeal. Tex.R.App. P. 25.1(c). Generally, if a party fails to timely file a notice of appeal, we do not have jurisdiction to address the merits of his appeal. See Wagner & Brown, Ltd. v. Horwood, 58 S.W.3d 732, 737–38 (Tex.2001); Brashear v. Victoria Gardens of McKinney, L.L.C., 302 S.W.3d 542, 545 (Tex.App.—Dallas 2009, no pet.) (timely filing of notice of appeal is jurisdictional prerequisite).
Here, the trial court, in its June 6, 2014 judgment, sanctioned Elgohary and ordered him to “pay ... $450.00 in Attorney['s] fees within thirty (30) days.” Thus, Elgohary has an interest in the trial court's judgment and standing to challenge the imposition of sanctions against him. However, Elgohary's notice of appeal was due on September 4, 2014. SeeTex.R.App. P. 26.1(a) (notice of appeal must be filed within ninety days after judgment signed if any party timely files motion to modify judgment or motion for new trial), (d) (“[I]f any party timely files a notice of appeal, another party may file a notice of appeal within the applicable period stated above or 14 days after the first filed notice of appeal, whichever is later.”).
On July 18, 2014, Mina, Elgohary's client and a party to the trial court's judgment, timely filed its notice of appeal, naming itself as the only appellant in the instant case and seeking review of the trial court's “judgment signed ... on 14 May 2014 and the order modifying that judgment on 6 June 2014.”SeeTex. R. App. P. 26.1(a); cf. Crofton v. Amoco Chem. Co., No. 01–01–00526–CV, 2003 WL 21297588, at *3 (Tex.App.—Houston [1st Dist.] May 30, 2003, pet. denied) (mem.op.) (original notice of appeal did not include all parties who sought to challenge trial court's judgment); see also Bahar v. Baumann, No. 03–09–00691–CV, 2011 WL 4424294, at *2 (Tex.App.—Austin Sept. 23, 2011, pet. denied) (mem.op.) (original notice of appeal named only client as party filing notice and not client's attorneys who had been sanctioned).
Elgohary did not have an interest in the trial court's May 14, 2014 judgment, which “DISMISSED with prejudice” Mina's claims against AAS and AAS's claims again Mina and Cinco Car Care, Inc.
The original docketing statement filed with this Court on July 28, 2014 by Mina also named it as the only appellant. Cf. In re Estate of Curtis, 465 S.W.3d 357, 365–66 (Tex.App.—Texarkana 2015, pet. dism'd); see alsoTex. R. App. P. 32.1 (addressing docketing statements in civil cases).
Subsequently, on October 6, 2014, Elgohary filed in this Court a purported “amended” notice of appeal, which for the first time named him as an appellant and stated that he sought to “appeal[ ] from th[e] [trial court's June 6, 2014] order.” SeeTex.R.App. P. 25.1(g) (“An amended notice of appeal correcting a defect or omission in an earlier filed notice may be filed in the appellate court ....”); cf. Crofton, 2003 WL 21297588, at *3 (“[A]ppellants filed a[n] ... amended notice of appeal seeking to ... add Coy Wilson as an appellant ... after the appellate deadline for any additional parties to file a notice of appeal from the trial court's judgment ....” (internal quotations omitted)); see also Bahar, 2011 WL 4424294, at *2 (attorneys first named as appellants in amended notice of appeal filed “roughly eight months” after notice of appeal deadline);.
Notably, an attorney who wishes to challenge a trial court's sanctions order against him must either expressly join in his client's notice of appeal or separately file his own. SeeTex.R.App. P. 25.1(c); Bahar, 2011 WL 4424294, at *2; Sluder v. Ogden, No. 03–10–00280–CV, 2011 WL 116058, at *2 (Tex.App.—Austin Jan. 13, 2011, pet. denied) (mem.op.); Niera v. Frost Nat'l Bank, No. 04–09–00224– CV, 2010 WL 816191, at *1–2 (Tex.App.—San Antonio Mar. 10, 2010, pet. denied) (mem.op.); Matbon, Inc. v. Gries, 287 S.W.3d 739, 739–40 (Tex.App.—Eastland 2009, no pet.); see also Benavides v. Knapp Chevrolet, Inc., No. 01–08–00212–CV, 2009 WL 349813, at *3 (Tex.App.—Houston [1st Dist.] Feb. 12, 2009, no pet.) (mem.op.) (declining to review sanctions order against attorney who did not join client's notice of appeal or file his own).
Why? Because a client simply does not have standing to appeal sanctions imposed against his attorney. See Boyaki v. John O'Quinn & Assocs., PLLC, No. 01–12–00984–CV, 2014 WL 4855021, at *19 (Tex.App.—Houston [1st Dist.] Sept. 30, 2014, pet. filed) (mem.op.); Sluder, 2011 WL 116058, at *2; Bahar v. Lyon Fin. Servs., Inc., 330 S.W.3d 379, 388–89 (Tex.App.—Austin 2010, pet. denied); Niera, 2010 WL 816191, at *1–2; Matbon, 287 S.W.3d at 740; see also Torrington, 46 S.W.3d at 843 (“Texas courts have long held that an appealing party may not complain of errors that do not injuriously affect it or that merely affect the rights of others.”); Benavides, 2009 WL 349813, at *3 (declining to review sanctions ordered against attorney because only client filed notice of appeal).
Here, Mina timely filed its notice of appeal on July 18, 2014. SeeTex.R.App. P. 26.1(a). However, Mina is the only appellant named in that notice of appeal, and it had no standing to challenge the imposition of sanctions against its attorney, Elgohary. See Boyaki, 2014 WL 4855021, at *19; Sluder, 2011 WL 116058, at *2; Lyon Fin. Servs., 330 S.W.3d at 388–89; Niera, 2010 WL 816191, at *1–2; Matbon, 287 S.W.3d at 740; see also Torrington, 46 S.W.3d at 843; Benavides, 2009 WL 349813, at *3. In other words, Elgohary cannot rely on Mina's July 18, 2014 original notice of appeal to establish that he timely perfected his appeal. SeeTex.R.App. P. 25.1(a) (“An appeal is perfected when a written notice of appeal is filed....”); Bahar, 2011 WL 4424294, at *2–3 (rejecting argument attorneys “named as appellants in a timely filed notice of appeal” because “ ‘Amended Notice of Appeal’ ... related back to the filing date of [client's original] notice of appeal”); see also Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444–45 (Tex.1993) (“[A] lack of standing deprives a court of subject-matter jurisdiction because standing is an element of such jurisdiction.”); S. Cnty. Mut. Ins. Co. v. Powell, 736 S.W.2d 745, 748 (Tex.App.—Houston [14th Dist.] 1987, orig. proceeding) (motion has no legal effect if filed by person or entity without standing).
Further, Elgohary cannot legitimately rely upon Texas Rule of Appellate Procedure 25.1(g) to “amend[ ]” Mina's original notice of appeal and add himself as an appellant in this case after the deadline had passed for him to file his notice of appeal. SeeTex.R.App. P. 25.1(g) (governing amending notice of appeal), 26.1(a), (d) (proscribing deadlines for filing notice of appeal).
In Crofton, which constitutes binding precedent, this Court addressed the issue of whether a party, not named in an original notice of appeal, may subsequently be added as an appellant by way of an amended notice of appeal filed after the deadline for any additional parties to file their notices of appeal. 2003 WL 21297588, at *3; see also Tex. R. App. P. 26.1(a), (d). There, Coy Wilson, a plaintiff in the trial court and a party to the trial court's no-evidence summary judgment, had been “omitted” from the appellants' original notice of appeal. Crofton, 2003 WL 21297588, at *3. The appellants then filed an “amended” notice of appeal months later, “seeking ‘to correct a clerical defect or omission’ and add ... Wilson as an appellant.” Id.; see alsoTex.R.App. P. 25.1(g) (allowing amendment of notice of appeal to “correct[ ] a defect or omission in an earlier filed notice”). We, however, held that because the “amended notice of appeal was, in effect, ... Wilson's first notice of appeal from the trial court's judgment [,] ... it was untimely filed.” Crofton, 2003 WL 21297588, at *3.
SeeTEX. R.App. P. 47.7 cmt. (“All opinions and memorandum opinions in civil cases issued after the 2003 amendment have precedential value.”); R.J. Suarez Enters. Inc. v. PNYXL.P., 380 S.W.3d 238, 243 n. 2 (Tex.App.—Dallas 2012, no pet.) (same); see also Chase Home Fin., EEC. v. Cal W. Reconveyance Corp., 309 S.W.3d 619, 630 (Tex.App.—Houston [14th Dist.] 2010, no pet.) (“Absent a decision from a higher court or this court sitting en banc that is on point and contrary to the prior panel decision or an intervening and material change in the statutory law, this court is bound by the prior holding of another panel of this court.”).
In reaching our holding, we explained that the “appellants' original notice of appeal was filed timely and included all named appellants save ... Wilson, while [the] ... amended notice of appeal was filed well after the appellate deadline for any additional parties to file a notice of appeal from the trial court's judgment.” Id. (emphasis added). And, although the appellants' attorney explained that Wilson's name was “inadvertently” and “mistakenly” “omitted” from the original notice of appeal, we concluded that such an “omission” was not the type of “ ‘defect’ susceptible to correction by amendment” under rule 25.1(g).Id. (internal quotations omitted). Because the “amended notice of appeal was, in effect, ... Wilson's first notice of appeal” and “it was untimely filed,” we held that we had no jurisdiction to consider the merits of Wilson's appeal. Id.; see also Guerrero v. Mem'l Turkey Creek, Ltd., No. 01–09–00237–CV, 2011 WL 3820841, at *2 (Tex.App.—Houston [1st Dist.] Aug. 25, 2011, no pet.) (mem.op.) (dismissing appeal where amended notice of appeal was filed after notice of appeal deadline and was actually party's first notice of appeal because original notice of appeal was filed by another appellant, a layperson, who could not act on party's behalf).
At the time this Court decided Crofton, Texas Rule of Appellate Procedure 25.1(f), rather than rule 25.1(g), contained the provision allowing for amendment of a notice of appeal. See 2003 WL 21297588, at *3 (citing TEX. R. APP. P. 25.1(f)).
Here, like Wilson, Elgohary did not file his own separate notice of appeal, and he is not mentioned in Mina's original notice of appeal, which was filed on July 18, 2014. See Crofton, 2003 WL 21297588, at *3. And, although Mina's original notice of appeal in this case was timely filed, Elgohary's “amended” notice of appeal was filed on October 6, 2014, well after the deadline for any additional parties to file their notices of appeal from the trial court's judgment. See id.; see alsoTex.R.App. P. 26.1(a), (d). Moreover, in this case, Elgohary does not assert that his name was “inadvertently omitted or mistakenly omitted from the original notice of appeal,” as did Wilson. See Crofton, 2003 WL 21297588, at *3 (internal quotations omitted); see alsoTex.R.App. P. 25.1(g) (explaining amended notice of appeal “may be filed” to “correct[ ] a defect or omission in an earlier filed notice”). However, even had he done so, this Court has held that such a “defect or omission” is not the type that is “susceptible to correction by amendment” under rule 25.1(g). Crofton, 2003 WL 21297588, at *3 (internal quotations omitted). Thus, as we concluded in Crofton, Elgohary's “amended” notice of appeal filed in the instate case was, in effect, his first notice of appeal from the trial court's judgment, and it was untimely.See id.
The majority emphasizes the fact that the appellees in Crofton filed a motion to strike the untimely “amended” notice of appeal, which included Wilson, whereas here, no party has moved to strike Elgohary's late-filed notice of appeal. However, this distinction is of no consequence because we have a duty to “act appropriately” and “dismiss [ ]” an appeal when a party has failed to comply with “the[ ] [appellate] rules.” Tex. R. App. P. 25.1(b); see alsoTex. R. App. P. 42.3(c).
Accordingly, I would hold, as we did in Crofton, that because the “amended” notice of appeal filed on October 6, 2014 was actually Elgohary's first notice of appeal, “it was untimely filed.” SeeTex.R.App. P. 26.1(a), (d); Crofton, 2003 WL 21297588, at *3. Moreover, because this Court has a duty to “act appropriately,” pursuant to the Texas Rules of Appellate Procedure, I would dismiss Elgohary's appeal for his failure to comply with a requirement of the rules. SeeTex.R.App. P. 25.1(b), 42.3(c); see also Wagner & Brown, 58 S.W.3d at 737; Charette v. Fitzgerald, 213 S.W.3d 505, 509 (Tex.App.—Houston [14th Dist.] 2006, no pet.) (when notice of appeal untimely, appellate court must dismiss appeal).
In reaching the opposite conclusion, however, the majority disregards this Court's precedent, as well as persuasive authority from other appellate courts. And it misapplies Texas Rule of Appellate Procedure 25.1(b) and Texas Supreme Court authority.
In support of its decision to address the merits of Elgohary's sanctions issue, the majority relies primarily on rule 25.1(b), which provides:
The filing of a notice of appeal by any party invokes the appellate court's jurisdiction over all parties to the trial court's judgment or order appealed from. Any party's failure to take any other step required by these rules, including the failure of another party to perfect an appeal under (c), does not deprive the appellate court of jurisdiction
but is ground only for the appellate court to act appropriately, including dismissing the appeal.
Tex.R.App. P. 25.1(b) (emphasis added). Based on the first sentence of rule 25.1(b), the majority reasons that because Mina's original July 18, 2014 notice of appeal “conferred appellate jurisdiction over all of the parties to the trial court's order, including Elgohary,” the fact that Elgohary failed to timely file his own notice of appeal is of no moment. However, the majority's reliance on only the first sentence of rule 25.1(b) is misguided. Rule 25.1(b) does recognize the fact that once one party files a notice of appeal it invokes the court's jurisdiction “over all parties to the trial court's judgment,” but the rule simply does not relieve other parties of their obligation to timely file their own notice of appeal. See id.
Indeed, any party “who seeks to alter [a] trial court's judgment or other appealable order must file a notice of appeal” and that notice of appeal must be timely, otherwise an appellate court must dismiss the party's appeal. Tex.R.App. P. 25.1(b), (c) (emphasis added), 42.3; Wagner & Brown, 58 S.W.3d at 737; Calce v. Dorado Expl., Inc., 309 S.W.3d 719, 730 (Tex.App.—Dallas 2010, no pet.); Charette, 213 S.W.3d at 509. And the timely filing of a notice of appeal by one party, does not negate the requirement that other parties, who also “seek[ ] to alter the trial court's judgment,” must similarly timely file notices of appeal.SeeTex.R.App. P. 25.1(c). This is precisely why the appellate rules provide explicit filing deadlines for those other parties to file their own notices of appeal to challenge the trial court's judgment. See Tex. R. App. P. 26.1(d) (“[I]f any party timely files a notice of appeal, another party may file a notice of appeal within the applicable [time] period [provided in section (a) ] or 14 days after the first filed notice of appeal, whichever is later.” (emphasis added)).
Of course, “[p]arties whose interests are aligned may file a joint notice of appeal,” and a notice of appeal may not be required where a party does not seek “more favorable relief” than the trial court granted. SeeTex.R.App. P. 25.1 (c)
The majority's reasoning and holding renders rules 25.1(b), 25.1(c), and 26.1(d) meaningless after one party timely files a notice of appeal. If only one notice of appeal, timely filed by a single appellant, is sufficient for the Court to review each party's appellate issues, regardless of whether each has timely filed a notice of appeal, then why do the appellate rules provide specific deadlines by which additional parties are required to file their notices? See id. Contrary to the majority's reasoning and holding, the second sentence of rule 25.1(b) recognizes that appellate courts have a duty to “act appropriately” and “dismiss[ ]” an appeal when a party fails to timely perfect its appeal. SeeTex.R.App. P. 25.1(b).
The circumstances presented here are not unlike those presented where an appellee, in addition to an appellant, seeks to challenge a trial court's judgment. For instance, in Charette, a residential landlord-tenant dispute, the tenants brought suit for wrongful eviction, unauthorized seizure of personal property, wrongful lockout, and breach of contract. 213 S.W.3d at 507. After the trial court found in favor of the tenants, the landlords timely filed a notice of appeal. Id. at 507–09. The tenants, attempting to bring a cross-appeal, filed a notice of appeal as well, but not until a month after it was due. Id. at 509; see alsoTex.R.App. P. 26.1(a), (d) (providing notice of appeal deadline for “[ ]other part[ies]”). Because the tenants' notice of appeal was not timely filed, the Fourteenth Court of Appeals held that it “lack[ed] jurisdiction to entertain [the tenants'] issues” and could take no action other than to dismiss their appeal. Charette, 213 S.W.3d at 509; see alsoWhisenhunt v. Lippincott, 2015 WL 4735190, at *12 (Tex.App.—Texarkana Aug. 11, 2015, no pet. h.) (appellate court did not have jurisdiction over appellee's cross-appeal because notice of appeal not timely filed, even though appellant had previously timely filed original notice of appeal); Valerus Compression Servs. v. Reeves Cnty. Appraisal Dist., No. 08–13–00366–CV, 2014 WL 645035, at *1 (Tex.App.—El Paso Feb. 19, 2014, no pet.) (mem.op.) (although appellant's notice of appeal timely filed, cross-appeal dismissed because appellee's notice of cross-appeal not timely filed); PopCap Games, Inc. v. MumboJumbo, LLC, 350 S.W.3d 699, 715 (Tex.App.—Dallas 2011, pet. denied) (explaining unless notice of cross-appeal timely filed, court without jurisdiction and dismissal required).
Under the reasoning and holding of the majority in the present case, the tenants' cross-appeal in Charette should have been allowed to proceed, despite the untimeliness of the filing of their notice of appeal, because the landlords had timely filed their own notice of appeal. In the majority's view, this is all that is required to review the appellate issues of each party to a trial court's judgment. According to the majority, once “[t]he initial notice of appeal confer[s] appellate jurisdiction over all of the parties to the trial court's order,” the fact that another appellant, such as a cross-appellant, does not timely file his notice of appeal simply does not matter.
Not only is the majority's reasoning and holding in conflict with our reasoning and holding in Crofton, it also ignores the opinions of our sister appellate courts in cases with facts similar to those presented here. For instance, in Bahar, after several discovery disputes, the trial court sanctioned Valerie Thomas Bahar's attorneys. 2011 WL 4424294, at *1. On November 30, 2009, Bahar timely filed a notice of appeal, which listed her as the only appellant. Id. Subsequently, on July 12, 2010, her attorneys filed an “Amended Notice of Appeal,” which, for the first time, listed them as appellants, in addition to Bahar. Id. The attorneys agreed with the Austin Court of Appeals that in order for it to have jurisdiction over their appeal “they had to be named as appellants in a timely filed notice of appeal.” Id. at *3. They argued, however, “that this requirement was met because the ‘Amended Notice of Appeal’ filed July 12, 2010 related back to the filing date of Bahar's [original timely filed] notice of appeal” and “the failure of the original notice of appeal to name them as appellants was a simple omission correctable by amendment.” Id.; see also Tex. R. App. P. 25.1(g) (allowing amendment of notice of appeal). The court disagreed, holding that the attorneys could not “rely on the November 30, 2009 [original] notice of appeal [filed by their client] to establish that they timely perfected their appeal.” Bahar, 2011 WL 4424292, at *2. In doing so, the court concluded that rule 25.1(g) could not be used to untimely add an additional appellant to a previously timely filed notice of appeal. Id. at *3–4. Accordingly, because neither the original notice of appeal, naming Bahar as the only appellant, nor the amended notice of appeal, naming Bahar's attorneys as additional appellants, qualified as a timely notice of appeal for the attorneys, the court had to dismiss the attorneys' appeal and could not address its merits. Id. at *4.
Similarly, and more recently, the Texarkana Court of Appeals addressed the issue of whether a party may be added to an appeal as an appellant by virtue of an amended notice of appeal filed after the notice-of-appeal deadline had passed. In re Estate of Curtis, 465 S.W.3d 357, 363–66 (Tex.App.—Texarkana 2015, pet. dism'd). There, the trial court entered a judgment against both Robert Jaeckle and Reunion Ranch Inc. (“Reunion Ranch”), jointly and severally, and both parties sought to appeal. Id. at 360–61. Jaeckle timely filed a notice of appeal on April 28, 2014; however, this notice of appeal did not list Reunion Ranch as an appellant. Id. at 364. On August 12, 2014, “a first amended joint notice of appeal was filed, naming both Jaeckle and Reunion Ranch as appellants and stating that ‘Robert J. Jaeckle timely filed the Notice of Appeal on April 28, 2014[,] so ... th[e] court has jurisdiction over all the parties to the trial court's judgment.’ ” Id.; see alsoTex.R.App. P. 25.1(g) (allowing amendment of notice of appeal).
The Texarkana court noted that, under rule 25.1(c), Reunion Ranch was required to timely file a notice of appeal because it sought to alter the trial court's judgment. In re Estate of Curtis, 465 S.W.3d at 364; see alsoTex.R.App. P. 25.1(c). Reunion Ranch, however, argued that the original notice of appeal, filed by Jaeckle, constituted “a good faith effort to invoke th[e] [c]ourt's jurisdiction on behalf of Reunion Ranch” and “its position as an appellant was ultimately secured when it filed the amended joint notice of appeal in reliance on [r]ule 25.1 [ (g) ] which allows an appellant to file an amended notice of appeal to correct a defect or omission in an earlier filed notice.” In re Estate of Curtis, 465 S.W.3d at 364; see alsoTex.R. App. P. PP. P. 25.1(g). The court disagreed, holding that because “Reunion Ranch's first notice of appeal, filed on August 12, 2014 was untimely,” the court lacked jurisdiction to consider the merits of Reunion Ranch's portion of the appeal. In re Estate of Curtis, 465 S.W.3d at 366. In other words, the court disagreed with Reunion Ranch that it could rely on rule 25.1(g) to add itself as an appellant to the appeal after its deadline to file a notice of appeal had passed. And the court explained that Reunion Ranch did not make “a bona fide attempt to invoke appellate jurisdiction,” where the original notice of appeal did not indicate that Reunion Ranch also sought to appeal the trial court's judgment.Id.
Additionally, the Fourteenth Court of Appeals recently addressed whether it had jurisdiction over a party, Daniel W. Krueger, who, along with the City of Houston, sought to challenge a trial court's order partially denying a plea to the jurisdiction based on governmental immunity. City of Hous. v. Little Nell Apartments, L.P., 424 S.W.3d 640, 643–46 (Tex.App.—Houston [14th Dist.] 2014, pet. filed). There, the City timely filed a notice of appeal on December 12, 2012, the same day that the trial court made an oral ruling on the plea to the jurisdiction. Id. at 643–44. The City then filed an amended notice of appeal on January 11, 2013, when the trial court signed its written order. Id. at 644. Subsequently, on March 27, 2013, the City and Krueger filed a second amended notice of appeal, which, for the first time, listed Krueger as an appellant. Id. In response, the appellees argued that the court did not have jurisdiction over Krueger's appeal because he was not named as an appellant until the second amended notice of appeal, which was not filed until months after the trial court's order. Id. The court, however, concluded that it did have jurisdiction over Krueger's appeal, noting that rule 25.1(g) allows a party to amend a notice of appeal to correct a defect or omission in an earlier filed notice. Id. at 644–46; see alsoTex. R. App. P. 25.1(g). Notably though, in reaching its conclusion, the court specifically distinguished situations, like that presented here, where the party who timely filed the original notice of appeal lacked standing to appeal on the later-added appellant's behalf. City of Hous., 424 S.W.3d at 645–46, 645 nn. 10–11. And, the court specifically distinguished our decision in Crofton. Id.
In support of its reasoning and holding in the instant case, the majority further relies on Warwick Towers Council of Co–Owners v. Park Warwick, L.P., 244 S.W.3d 838 (Tex.2008). Again, the majority's reliance is misplaced. In Warwick, condominium owners in the Warwick Towers sued the neighboring Warwick Hotel for negligence, nuisance, and trespass, after the hotel failed to use “a flood barrier system” to prevent rainwater from entering the basement of the Warwick Towers during a severe rain storm. 244 S.W.3d at 838. The condominium's insurer, St. Paul Fire & Marine Insurance Company (“St.Paul”), asserted its subrogation rights in the lawsuit, having paid approximately $1 million as a result of the water damage. Id. at 838–39. After the trial court dismissed the condominium owners' nuisance and trespass claims, the owners settled with the hotel and dismissed their remaining negligence claim with prejudice. Id. at 839. The trial court also dismissed St. Paul's subrogation claim, and St. Paul sought to appeal. Id. However, when St. Paul filed its notice of appeal, it failed to include its name on the notice, but instead named its insured, the Warwick Tower Council of Co–Owners, as the appellant. Id. The supreme court noted that the docketing statement, filed by St. Paul on the same day that it filed the notice of appeal, identified the appellant as “Warwick Towers Council of Co–Owners by and through St. Paul Fire & Marine Insurance Company.” Id. (internal quotations omitted). And “[a]ll other appellate documents were also styled in th[e] [same] manner.” Id.
Although the court of appeals held that it could not reach the merits of St. Paul's appeal because the notice of appeal did not reflect that it was filed by St. Paul, the supreme court concluded that St. Paul had “made a bona fide attempt to appeal by filing the notice of appeal in the name of its insured, and by listing its interest in the docketing statement and other appellate pleadings.” Id. (citing Foster v. Williams, 74 S.W.3d 200, 203 (Tex.App.—Texarkana 2002, pet. denied) (holding filing of docketing statement constituted bona fide attempt to perfect appeal)). Accordingly, the supreme court held that the court of appeals had erred in not reaching the merits of St. Paul's appeal. Id. at 840.
The reasoning and holding of the Texas Supreme Court in Warwick does not support the majority's reasoning and holding in the instant case. First, although in Warwick there were multiple parties to the trial court's order dismissing the condominium owners' nuisance and trespass claims and St. Paul's subrogation claim against the hotel, the condominium owners settled with the hotel prior to appeal and dismissed any remaining causes of action that they had against the hotel. Id. at 838–39. Thus, although the owners may have been listed on St. Paul's notice of appeal, they were not actually able to appeal due to their settlement. In fact, St. Paul did not settle with the hotel and was the only party that could actually appeal the trial court's dismissal order. This dramatically reduced any confusion that was created when St. Paul filed its notice in its insured's name, rather than in its own. See id. at 839.
In contrast, in the instant case, there is not only one party that could have appealed from the trial court's June 6, 2014 judgment; both Mina and Elgohary had separate grounds for appealing the judgment. And, unlike in Warwick, where the single appellant simply misnamed itself in its notice of appeal, here, Elgohary, who had a completely independent issue to appeal, failed to timely file a notice of appeal.
Also, the supreme court in Warwick placed great emphasis on the fact that St. Paul's docketing statement, filed the same day as its notice of appeal, expressly and clearly listed its interest in the appeal. Id. at 839. Here, however, the original docketing statement in this case, filed at the end of July and after Mina's original notice of appeal, does not list Elgohary as an appellant. Cf. In re Estate of Curtis, 465 S.W.3d at 365 (distinguishing Warwick because “[i]n this case, the docketing statement does not mention Reunion Ranch”). And, although the supreme court did not indicate what “other appellate documents” it looked at when it concluded that St. Paul had made a bona fide attempt to appeal, Elgohary, in the present case, is not listed on Mina's July 18, 2014 original notice of appeal, Mina's July 28, 2014 docketing statement, or the August 20, 2014 designation of documents to be included in the clerk's record. See Warwick, 244 S.W.3d at 839. It was not until October 6, 2014, when the “amended” notice of appeal was untimely filed, that there was any indication that Elgohary also sought to challenge the trial court's judgment.
In sum, this Court's reasoning and holding in Crofton controls the disposition of Elgohary's appeal and requires its dismissal.See 2003 WL 21297588, at *3; see also Guerrero, 2011 WL 3820841, at *2 (dismissing appeal where party's original notice of appeal filed by layperson, who could not act on party's behalf, and party's “amended” notice of appeal filed after notice of appeal deadline). In holding otherwise, the majority misapplies rule 25.1(b) and the Texas Supreme Court's reasoning and holding in Warwick and strays from the decisions of our sister appellate courts. See In re Estate of Curtis, 465 S.W.3d at 363–66; City of Hous. v. Little Nell Apartments, L.P., 424 S.W.3d 640, 644–46 (Tex.App.—Houston [14th Dist.] 2014, pet. denied); Bahar, 2011 WL 4424294, at *1–4; but see Loeffler v. Lytle Indep. Sch. Dist., 211 S.W.3d 331, 338–39 (Tex.App.—San Antonio 2006, pet. denied). Because Elgohary failed to timely file his notice of appeal in this case and this Court has a duty to “act appropriately,” we should dismiss his appeal and not consider its merits. SeeTex.R.App. P. 25.1(b), 42.3(c).
“[T]he doctrine of stare decisis creates a strong presumption that precedents should be followed to foster ‘efficiency, fairness, and legitimacy.’ ” Martinez v. Hous. McLane Co., LLC, 414 S.W.3d 219, 222 (Tex.App.—Houston [1st Dist.] 2013, pet. denied) (quoting Grapevine Excavation, Inc. v. Md. Lloyds, 35 S.W.3d 1, 5 (Tex.2000)). If courts do not follow precedent, no issue can ever be considered resolved. Id. Stare decisis is necessary to “ ‘give due consideration to the settled expectations of litigants ...who have justifiably relied on’ precedent.” Id. at 223 (quoting Weiner v. Wasson, 900 S.W.2d 316, 320 (Tex.1995)). Without stare decisis, we can have no “ ‘predictability in the law, which allows people to rationally order their conduct and affairs.’ ” Id. (quoting Grapevine, 35 S.W.3d at 5). Should the majority disagree with the Court's holding in Crofton, there are procedures for overruling our prior decision, but such measures should only be taken when there “is an extremely compelling reason to do so.” Howeth Invs., Inc. v. City of Hedwig Village, 259 S.W.3d 877, 901 (Tex.App.—Houston [1st Dist.] 2008, pet. denied); see also MobileVision Imaging Servs., L.L.C. v. LifeCare Hosps. of N. Tex., L.P., 260 S.W.3d 561, 566 (Tex.App.—Dallas 2008, no pet.) (explaining appellate court “may not overrule a prior panel decision of th[e] [c]ourt absent an intervening change in the law by the legislature, a higher court, or th[e] [c]ourt sitting en banc”).
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