Opinion

Archie C. Branch v. Loretta Young Branch

Court
Texas Court of Appeals, 1st District (Houston)
Filed
Jan 26, 2012
Status
Published
Cited by
0 cases
Authority
More cited than 42.2%

The opinion

Opinion issued January 26,

2012 .

In The

Court of Appeals

For The

First District of

Texas

NO. 01-11-00492-CV

____________

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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.