David Gillespie and Michael O'Brien v. A.L. Hernden and Frederick R. Zlotucha

ACCEPTED
04-15-00405-cv
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
11/19/2015 3:54:26 PM
KEITH HOTTLE
CLERK

CAUSE NO. 04-15-00405-CV

DAVID GILLESPIE, § IN THE COURT OF APPEALS
FILED IN
APPELLANT, § 4th COURT OF APPEALS
§ SAN ANTONIO, TEXAS
—VERSUS— 11/19/2015
§ FOURTH COURT OF APPEALS 3:54:26 PM
DISTRICT
§ KEITH E. HOTTLE
A.L. HERNDEN AND § Clerk
FREDERICK R. ZLOTUCHA, §
APPELLEES. § SAN ANTONIO, TEXAS

OPPOSED MOTION TO STRIKE UNTIMELY “AMENDED” NOTICE OF APPEAL
FILED FOUR MONTHS AFTER THE DEADLINE, AND, IN THE ALTERNATIVE,
MOTION TO EXTEND TIME TO FILE NOTICE OF CROSS APPEAL

TO THE HONORABLE JUSTICES OF SAID COURT:

NOW COME Appellees A.L. Hernden and Frederick R. Zlotucha and file this Opposed

Motion to Strike Untimely “Amended” Notice of Appeal Filed Four Months After the Deadline,

and, in the Alternative, Motion to Extend Time to File Notice of Cross Appeal. In support of this

motion, Hernden and Zlotucha respectfully show the Court as follows:

A. INTRODUCTION

1. Two Plaintiffs filed this legal malpractice case. Two Plaintiffs lost on summary

judgment. Two Plaintiffs asked the trial court to reconsider that order. But only one

Plaintiff filed a notice of appeal. Now, more than four months after the notice of appeal

was due, the second Plaintiff filed an “amended” notice of appeal, asking this Court to

ignore the fact that the deadline to perfect his appeal has long since passed.

2. Two Plaintiffs—David Gillespie and Michael O’Brien—sued Defendants A.L. Hernden

and Frederick R. Zlotucha. See Exh. 1.

3. Those two Plaintiffs filed a motion for summary judgment. See Exh. 2.
4. The 224th Judicial District Court, the Honorable Cathy Stryker, presiding, signed an

order denying the motion for summary judgment filed by those two Plaintiffs. See Exh. 3.

5. Hernden and Zlotucha filed a hybrid motion for summary judgment asking the trial court

to render judgment against those two Plaintiffs. See Exh. 4.

6. On April 2, 2015, Judge Stryker signed an order granting that hybrid motion for summary

judgment and ordering the two Plaintiffs to take nothing by their claims. See Exh. 5. That

order contained a Mother Hubbard clause and recited that it was a final, appealable

judgment. See Exh. 5.

7. On May 1, 2015, those two Plaintiffs filed a motion to reconsider and alternative motion

for new trial. See Exh. 6. Those two Plaintiffs failed to set a hearing on that motion, so

the trial court overruled that motion by operation of law. See Exh. 7.

8. On July 3, 2015, one of those Plaintiffs—David Gillespie—filed his notice of appeal. See

Exh. 8. That document referenced only one Plaintiff. The language in that notice of

appeal consistently represents that it was filed on behalf of a single Plaintiff:

See Exh. 8. Furthermore, Gillespie’s counsel expressly represented that he filed the notice

of appeal on behalf of only one Plaintiff:

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 See Exh. 8.

9. On July 6, 2015, this Court issued a notice informing the parties that the “appellant’s

notice of appeal” had been filed, notifying the “appellant” that he had failed to pay the

filing fee, and alerting “[t]he Appellant” that he had not filed the docketing statement. See

Exh. 9. All the references in this notice were to a single “appellant.” See Exh. 9.

10. On July 28, 2015, this Court issued an order that since “appellant David Gillespie” had

not paid the filing fee, “appellant” was ordered to pay the filing fee within 10 days, and

threatening to dismiss the appeal “[i]f appellant fails to respond. . . .” See Exh. 10.

11. On September 15, 2015, this Court issued an order informing “Appellant David

Gillespie” that his notice of appeal was not filed on time—that notice of appeal was due

on July 1, 2015, but Gillespie did not file it until July 3, 2015. See Exh. 11. The style of

that order clearly shows that David Gillespie was the only appellant, and refers to the fact

that there is only one appellant in this case six times. See Exh. 11.

12. On September 30, 2015, “Appellant, David Gillespie” filed a motion to extend the

deadline to file his notice of appeal. See Exh. 12. The style of that motion clearly shows

that David Gillespie was the only appellant, and refers to the fact that he was the only

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 party on his “side” twelve times.1 See Exh. 12. In addition, the notice this Court sent the

parties on that date confirmed that there was only one Appellant. See Exh. 13.

13. On October 5, 2015, this Court granted Gillespie’s motion for extension of time to file his

notice of appeal. See Exh. 14. O’Brien’s name does not appear in the style or anywhere in

the body of the order. See Exh. 14. This Court used the singular term “appellant” five

times in that order and the notification of the order. See Exh. 14. This Court did not grant

any extension of time for O’Brien to file his notice of appeal. See Exh. 14.

14. On October 21, 2015, Gillespie filed a motion seeking to extend the deadline for filing

his appellate brief by thirty days. See Exh. 15. The style of that motion clearly shows that

David Gillespie was the only appellant, and refers to the fact that there is one appellant in

this case nine times. See Exh. 15.

15. On October 21, 2015, this Court extended the deadline for Appellant David Gillespie to

file his appellate brief by thirty days. See Exh. 16. O’Brien’s name does not appear in the

style or anywhere in the body of the order. See Exh. 16. This Court used the singular term

“appellant” three times in that order. See Exh. 16.

16. On November 3, 2015, “Appellants” filed an “amended” notice of appeal attempting to

include O’Brien in this appeal. See Exh. 17. For the following reasons, Appellees

respectfully request that this Court strike the amended notice of appeal. See Exh. 17.

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In this motion, Gillespie correctly referred to himself as the singular appellant sight times, and incorrectly referred
to himself as the singular appellee four times. See Exh. 12. Although Gillespie was confused about whether he was
the appellant or the appellee, he was not confused about whether any other parties were aligned with him on
appeal—he uniformly used the singular version of the appellant or appellee party designation. See Exh. 12.

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 B. ARGUMENT AND AUTHORITIES

17. Texas Rule of Appellate Procedure 25.1(c) provides:

A party who seeks to alter the trial court’s judgment or other appealable
order must file a notice of appeal. Parties whose interests are aligned may
file a joint notice of appeal. The appellate court may not grant a party who
does not file a notice of appeal more favorable relief than did the trial
court except for just cause.

Tex. R. App. P. 25.1(c).

18. Texas Rule of Appellate Procedure 25.1(g) provides:

An amended notice of appeal correcting a defect or omission in an earlier
filed notice may be filed in the appellate court at any time before the
appellant’s brief is filed. The amended notice is subject to being struck for
cause on the motion of any party affected by the amended notice. . . .

Tex. R. App. P. 25.1(g).

19. O’Brien now seeks to alter the trial court’s judgment against him. But if he wanted to

alter the trial court’s judgment against him, he was required to file a notice of appeal. See

id. Rule 25.1(c). His deadline to file that notice of appeal was July 1, 2015. See id. Rule

26.1(a)(1). Even with an extension of time, his deadline to file a notice of appeal was July

16, 2015. See id. Rule 26.3. He did not file a notice of appeal until November 3, 2015—

more than four months after his notice of appeal was originally due. See Exh. 17.

20. Texas has adopted a general policy of construing bona fide but technically defective

attempts to invoke appellate courts’ jurisdiction as sufficient to preserve the right to

appeal. See, e.g., Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997). However, not

every attempt to invoke the appellate court’s jurisdiction is a bona fide attempt. See, e.g.,

In re K.A.F., 160 S.W.3d 923, 928 (Tex. 2005) (filing a motion for new trial is not a bona

fide attempt to invoke the appellate court’s jurisdiction). The requirement of timely

filing a notice of appeal is jurisdictional. Id.; see also Bowles v. Russell, 551 U.S. 205,

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 213 (2007) (a party’s “failure to file his notice of appeal in accordance with the statute

therefore deprived the Court of Appeals of jurisdiction.”). If O’Brien wanted to appeal

the judgment, he was required to file a notice of appeal by July 1, 2015 to maintain the

courts’ jurisdiction over his claims. See Tex. R. App. P. 26.1(a)(1); see also Exh. 14.

21. Nothing in the notice of appeal Gillespie filed demonstrates any intent to invoke this

Court’s jurisdiction over O’Brien. See Exh. 8; Cf. In re J.M., 396 S.W.3d 528, 529-31

(Tex. 2013). O’Brien’s name does not appear in that document. See Exh. 8. Gillespie’s

counsel indicated that he filed that notice of appeal on behalf of a singular “Plaintiff”—

David Gillespie. See Exh. 8.

22. Nothing in Gillespie’s motion to extend the deadline to file the notice of appeal

demonstrates O’Brien’s intent to invoke this Court’s jurisdiction. See Exh. 12. O’Brien’s

name does not appear in that document. See Exh. 12. Gillespie’s counsel indicated that he

filed that motion for extension of time on behalf of a singular “Appellant”—David

Gillespie. See Exh. 12.

23. Nothing in Gillespie’s motion to extend the deadline to file his brief demonstrates that

O’Brien believed he had invoked this Court’s jurisdiction. See Exh. 15. O’Brien’s name

does not appear in that document. See Exh. 15. Gillespie’s counsel indicated that she filed

that motion on behalf of a singular “Appellant”—David Gillespie. See Exh. 15. In fact,

Gillespie’s counsel only entered an appearance on behalf of a singular “Appellant”—

David Gillespie. See Exh. 15.

24. In Gillespie’s own filings, he referred to a singular Appellant 23 times. See Exh. 8, 12,

15. In fact, the first time Gillespie ever referred to multiple “Appellants” was in his

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 “amended” notice of appeal. See Exh. 17. In every one of his filings to that point, he

referenced a singular “Appellant.” Compare Exh. 8, 12, 15 with Exh. 17.

25. Similarly, this Court’s orders and notifications referred to a singular Appellant 21 times.

See Exh. 9, 10, 11, 13, 14, 16.

26. A bona fide attempt to invoke this Court’s jurisdiction requires action. See, e.g., In re

J.M., 396 S.W.3d at 530. On this point, the Supreme Court has written “[a]s long as ‘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 our Rules to perfect the

appeal.’” Id. (citing Grand Prairie Indep Sch. Dist. v. S. Parts Imports, Inc., 813 S.W.2d

499, 500 (Tex. 1991)). Here, O’Brien did not take a single action that demonstrates any

intent to invoke this Court’s jurisdiction. This Court should recognize that, since O’Brien

did not file a notice of appeal until more than four months after his deadline to do so, and

since that deadline is jurisdictional, this Court lacks the authority to grant him more

favorable relief than the trial court did. See Tex. R. App. P. 25.1(c). In a strikingly similar

case, the Houston First Court of Appeals reached this same conclusion and dismissed, for

want of jurisdiction, the appeal of a plaintiff whose name was excluded from the notice of

appeal. See Crofton v. Amoco Chem. Co., No. 01-01-00526-CV; 2003 WL 21297588, at

*3 (Tex. App.—Houston [1st Dist.] 2003 pet. denied) (mem. op.). The Houston Court

recognized that such an omission was not “a ‘clerical defect’ susceptible to correction by

amendment.” Id. O’Brien can present no “just cause” why this Court should ignore the

Texas Rules of Appellate Procedure and established precedent that only parties who file a

notice of appeal can ask the courts of appeals to alter the judgments against them. See,

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 e.g., Tex. R. App. P. 2 (appellate courts are prohibited from altering the time for

perfecting appeals in civil cases); Tex. R. App. P. 25.1(c).

27. In fact, exercising jurisdiction over O’Brien’s late-filed notice of appeal would harm

Hernden and Zlotucha by potentially depriving them of their ability to cross appeal to

complain about O’Brien’s notice of appeal, as described below.

28. Especially since Gillespie’s filings were so clearly made on behalf of Gillespie alone, and

since O’Brien took absolutely no action, this Court should recognize that a notice of

appeal filed on behalf of one party cannot constitute not a bona fide attempt to appeal on

behalf of another, unnamed party.

29. If this Court refuses to strike O’Brien’s “amended” notice of appeal, it will violate Texas

Rule of Appellate Procedure 2, which authorizes appellate courts to suspend the rules

“for good cause,” but prohibits courts from “alter[ing] the time for perfecting an appeal in

a civil case.” Tex. R. App. P. 2. Because granting an extension of more than four months

to file a notice of appeal plainly “alter[s] the time for perfecting an appeal in a civil case,”

the Texas Rules of Appellate Procedure prohibit it.

C. ALTERNATIVE MOTION TO EXTEND TIME TO FILE NOTICE OF CROSS APPEAL

30. In the event this Court does not strike O’Brien’s “amended” notice of appeal, A.L.

Hernden and Frederick R. Zlotucha want to preserve their complaints about O’Brien’s

failure to timely perfect his appeal. Even though they do not seek to alter the trial court’s

judgment, they desire to cross appeal the final judgment signed by the 224th Judicial

District Court of Bexar County, the Honorable Cathy Stryker, presiding on April 2, 2015

in Cause No. 2013-CI-10278; David Gillespie and Michael O’Brien v. A.L. Hernden and

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 Frederick R. Zlotucha. This appeal is to the Court of Appeals for the Fourth Court of

Appeals District of Texas in San Antonio. See Exh. 18.

31. The filing deadlines in the Texas Rules of Appellate Procedure demonstrate how

allowing O’Brien’s late “amended” notice of appeal hurts Hernden and Zlotucha. Under

Rule 26.1(d):

if any party timely files a notice of appeal, another party may file a
notice of appeal within [the general deadline to file a notice of appeal
that governs the case] or 14 days after the first filed notice of appeal,
whichever is later.

Tex. R. App. P. 26.1(d) (emphasis added). Even though the first notice of appeal was due

on July 1, it was not filed until July 3, 2015. See Exh. 15. Fourteen days from July 3,

2015 was July 17, 2015. But July 17, 2015 was more than three months before O’Brien

filed his “amended” notice of appeal. Under the plain language of the rules, Hernden and

Zlotucha were required to file their notice of cross appeal even before O’Brien filed his

“amended” notice of appeal. But the filing of the “amended” notice of appeal is the

development that triggered Hernden and Zlotucha’s need to file a cross appeal in the first

place. Surely the Rules cannot tolerate such an injustice. See Tex. R. App. P. 2 (“a court

must not construe this rule [authorizing suspension of the Texas Rules of Appellate

Procedure] to . . . alter the time for perfecting an appeal in a civil case.”).

32. Even if this Court were to apply the extension authorized by Rule 26.3, that Rule

authorizes this Court to:

extend the time to file the notice of appeal if, within 15 days after the
deadline for filing the notice of appeal, the party: (a) files in the trial
court he notice of appeal; and (b) files in the appellate court a motion
complying with Rule 10.5(b).

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 Tex. R. App. P. 26.3 (emphasis added). The “deadline” for O’Brien to file the notice of

appeal was July 1, 2015. See Exh. 15. Fifteen days from July 1, 2015 was July 16,

2015—more than three months before O’Brien filed his “amended” notice of appeal and

triggered Hernden and Zlotucha’s need to file a cross appeal. The result is the same even

if the “deadline” for Gillespie and O’Brien to file their notice of appeal was extended to

July 3, 2015. Since timely cross appealing is impossible according to the plain language

of the Rule in these circumstances, this Court should recognize that O’Brien’s “amended”

notice of appeal was untimely and strike it. See id.

33. If this Court does not strike O’Brien’s late-filed “amended” notice of appeal, A.L.

Hernden and Frederick R. Zlotucha respectfully request that this Court grant their motion

to extend the deadline to file their notice of cross appeal under Texas Rule of Appellate

Procedure 26.3, and deem that their notice of cross appeal, which was filed with the

Bexar County District Clerk’s Office on November 19, 2015, was timely filed.

D. EVIDENCE IN SUPPORT OF MOTIONS

34. Hernden and Zlotucha present the following exhibits in support of this motion:

1. Plaintiffs’ Original Petition and Requests for Disclosure

2. Plaintiffs’ Traditional Motion for Partial Summary Judgment

3. Order Denying Plaintiffs’ Traditional Motion for Partial Summary Judgment

4. Defendants’ Combined No Evidence and Traditional Motions for Summary
Judgment

5. Order Granting Defendants’ Combined No Evidence and Traditional Motions
for Summary Judgment and Final Judgment

6. Motion to Reconsider Summary Judgment and in the Alternative Motion for
New Trial

7. Bexar County Centralized Docket Sheet

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 8. Notice of Appeal

9. July 6, 2015 Notice from Fourth Court of Appeals

10. July 28, 2015 Order of Fourth Court of Appeals

11. September 15, 2015 Order of Fourth Court of Appeals

12. Appellee’s [sic] Motion for Extension of Time

13. September 30, 2015 Notice from Fourth Court of Appeals

14. October 5, 2015 Notice and Order of Fourth Court of Appeals

15. Notice of Appearance of Appellate Counsel & Appellant’s Unopposed Motion
for Briefing Deadline Extension

16. October 21, 2015 Corrected Order of Fourth Court of Appeals

17. Amended Notice of Appeal

18. Notice of Cross Appeal

E. CONCLUSION AND PRAYER

35. For the foregoing reasons, Appellees A.L. Hernden and Frederick R. Zlotucha

respectfully request that this Opposed Motion to Strike Untimely “Amended” Notice of

Appeal Filed Four Months After the Deadline, and, in the Alternative, Motion to Extend

Time to File Notice of Cross Appeal. Appellees further request all additional relief to

which they may be entitled, in equity or at law.

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Respectfully submitted,

/s/ Beth Watkins
Beth Watkins
State Bar No. 24037675
LAW OFFICE OF BETH WATKINS
926 Chulie Drive
San Antonio, Texas 78216
(210) 225-6666—phone
(210) 225-2300—fax
Beth.Watkins@WatkinsAppeals.com

Counsel for Appellees
and Conditional Cross-Appellants
A.L. Hernden and Frederick R. Zlotucha

/s/ Frederick R. Zlotucha
Frederick R. Zlotucha
State Bar No. 24037675
LAW OFFICE OF FREDERICK R. ZLOTUCHA
222 E. Main Plaza
San Antonio, Texas 78205
(210) 227-9877—phone
(210) 227-8316—fax
attyrickzlotucha@aol.com

Pro Se

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 CERTIFICATE OF CONFERENCE

I hereby certify that, on November 19, 2015, I e-mailed a copy of this Opposed Motion to
Strike Untimely “Amended” Notice of Appeal Filed Four Months After the Deadline, and, in the
Alternative, Notice of Cross Appeal to Ms. Kimberly Keller, counsel for Appellant. On
November 19, 2015, Ms. Keller responded that, on behalf of her clients, she was opposed to the
substance of this motion.

/s/ Beth Watkins
Beth Watkins

Counsel for Appellees
and Conditional Cross-Appellants
A.L. Hernden and Frederick R. Zlotucha

CERTIFICATE OF SERVICE

I hereby certify that, on November 19, 2015, I electronically served, via FileTime, my e-
filing service provider, a true and correct copy of the above document on the following counsel
of record:

Ms. Kimberly S. Keller
KELLER STOLARCZYK, PLLC
234 West Bandera Road #120
Boerne, Texas 78006
(830) 981-5000—phone
(888) 293-8580—fax
kim@kellsto.com

Attorney for Appellant
David Gillespie

/s/ Beth Watkins
Beth Watkins

Counsel for Appellees
and Conditional Cross-Appellants
A.L. Hernden and Frederick R. Zlotucha

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