The opinion
ACCEPTED
03-17-00365-cv
21650658
THIRD COURT OF APPEALS
AUSTIN, TEXAS
1/5/2018 4:48 PM
JEFFREY D. KYLE
CLERK
NO. 03-17-00365-CV
FILED IN
3rd COURT OF APPEALS
IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS
AUSTIN, TEXAS 1/5/2018 4:48:52 PM
JEFFREY D. KYLE
Clerk
MATEO CORTEZ, AS REPRESENTATIVE OF THE ESTATE OF DEBORAH CORTEZ,
APPELLANT,
V.
SANDRA FLESHER BROWN; CHARLOTTE FLESHER ASH; CHARLENE FLESHER
JOHNSTON; CONNIE LOU KEITH BARRY; RANDALL WAYNE DAVIS; VIRGINIA
VILLERS; CHARLES ROBERTS; LISA A. SMITH; PATRICIA CHAPMAN; BETTY J.
MARKS WEBB; JAMES BERL MARKS; LINDA MURRAY; THOMAS WAYNE
MARKS; AND DONALD LEMAN WHITED,
APPELLEES.
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:
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Appellant Mateo Cortez has demonstrated to the Court that he has
standing to appeal 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
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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.
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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 Appeals granted appellant’s motion for leave to amend her
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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
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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 notice of appeal indicating his representation of
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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 granting 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
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other than the ordinary appellants’ reply. In short, Appellees can show no
genuine prejudice or disadvantage to them if the notice is amended.
CONCLUSION
Because Brotherton’s name was inadvertently omitted from the notice
of appeal, because a bona fide attempt was 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 leave
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.
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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
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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 5th 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
Austin, TX 78701 400 W. 15th Street, Suite 408
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
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