Paul G. Parsons v. Trichter & Legrand, P.C. and Gary Trichter

Appellees’ Motion Denied, Appellant’s Motion Granted, and Order filed July
8, 2021

In The

Fourteenth Court of Appeals
____________

NO. 14-21-00284-CV
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PAUL G. PARSONS, Appellant

V.

TRICHTER & LEGRAND P.C. AND GARY TRICHTER, Appellees

On Appeal from the 164th District Court
Harris County, Texas
Trial Court Cause No. 2019-54590

ORDER

This appeal is from a summary judgment order signed April 21, 2021.
Appellant filed a notice of appeal on May 24, 2021. In that notice of appeal, below
a case caption that included the style of the case and the trial court cause number,
along with the trial court’s name itself, the notice declared that “[u]nder Texas Rule
of Appellate Procedure 25.1, [appellant] files this notice of appeal[, and t]his case
will be appealed to either the First or Fourteenth Court of Appeals, in Houston,
Texas.” The timing and form of the notice prompted appellees to file a motion to
dismiss this appeal for lack of jurisdiction and failure to comply with appellate
procedural rules. On June 14, 2021, appellant filed a motion for extension of time
to file an amended notice of appeal (which also serves as response to appellees’
motion), and he has also filed an amended notice of appeal with this court pursuant
to Texas Rule of Appellate Procedure 25.1(g).

The timeliness of appellant’s original and amended notices of appeal will be
addressed first. In civil cases, a notice of appeal normally “must be filed within 30
days after the judgment is signed.” Tex. R. App. P. 26.1. Appellant’s original notice
of appeal, filed 33 days after the trial court’s summary judgment order, indisputably
missed that deadline. However, if within 15 days after that deadline an appellant
both files in the trial court a notice of appeal and files in the appellate court a motion
to extend the time for the notice’s filing, the appellate court may extend the time for
the notice’s filing. See Tex. R. App. P. 26.3. Appellant’s original notice of appeal
was filed within that 15-day window, and although appellant’s formal motion to
extend time was filed beyond the 15-day window, the original notice of appeal itself
serves as an implied motion for extension of time. See Hone v. Hanafin, 104 S.W.3d
884, 886 (Tex. 2003).

To be granted an extension of time to file a notice of appeal, appellant must
reasonably explain his need for an extension to file his notice of appeal. Id. (quoting
Tex. R. App. P. 10.5(b)). This standard is satisfied with “any plausible statement of
circumstances indicating that failure to file within the specified period was not
deliberate or intentional, but was the result of inadvertence, mistake or mischance.”
Id. The explanation does not itself have to be provided within the 15-day window
for filing the motion for an extension; this court has previously provided an
opportunity for such an explanation to be given at oral argument, and appellant’s
explanation has been provided well before that stage. See Miller v. Greenpark

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Surgery Ctr. Assocs., Ltd., 974 S.W.2d 805, 808 (Tex. App.—Houston [14th Dist.]
1998, no pet.).

Appellant has met the standard for being granted an extension of time. His
current counsel was not retained for trial court proceedings, but was rather retained
in May 2021 (after the trial court signed its summary judgment order). Appellant’s
counsel has stated that in May, he was preparing for trial as well as actually first-
chairing a jury trial, all of which lasted through the evening of June 1st. Although
appellant’s counsel’s failure to timely file the document was evidently careless, that
still suffices to justify an extension of time for the notice of appeal. See Hykonnen
v. Baker Hughes Bus. Support Servs., 93 S.W.3d 562, 563 (Tex. App.—Houston
[14th Dist.] 2002, no pet.) (citing Garcia v. Kastner Farms, Inc., 774 S.W.2d 668,
669 (Tex. 1989)) (observing that the standard for extending time to file a notice of
appeal can be met even with “conduct [that] can be characterized as professional
negligence”).

Turning to the substance of appellant’s original notice of appeal, appellees
claim the original notice is flawed because it does not include the identity of the trial
court and style and cause number of the trial court proceedings, as well as the date
of the trial court judgment or order being appealed. See Tex. R. App. P. 25.1(d)(1)–
(2). But although the original notice does not include the style, cause number or trial
court’s name in its main text, that information is included in the case caption, and
that placement is enough to satisfy procedural requirements. Cf. Stumhoffer v.
Perales, 459 S.W.3d 158, 163 (Tex. App.—Houston [1st Dist.] 2015, pet. denied)
(analyzing the sufficiency of a notice of appeal based partly on what information
was included in its case caption). Moreover, although the original notice did not
include the date of the order or judgment appealed from, the amended notice does
specify that appellant is appealing from the trial court’s April 21, 2021 summary

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judgment order, as well as all subsidiary orders, and that correction is expressly
permitted under Texas procedural rules. See Tex. 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 at any time before the appellant’s brief is filed.”).

Although appellees have portrayed appellant’s original notice of appeal as
unsalvageable on the basis it was not a bona fide attempt to invoke appellate court
jurisdiction, their characterization is incorrect. As discussed above, the original
notice’s only defects were its untimeliness and its lack of detail as to what judgment
or order was being appealed from. Those defects do not prevent the defective
original notice of appeal from being a bona fide attempt to invoke this court’s
appellate jurisdiction, and thus do not defeat appellant’s later efforts to salvage his
appeal with an amended notice of appeal. See, e.g., City of San Antonio v. Rodriguez,
828 S.W.2d 417, 418 (Tex. 1992) (per curiam) (holding a notice of appeal was a
bona fide attempt to invoke appellate court jurisdiction despite including an
erroneous trial court cause number); Darya, Inc. v. Christian, 251 S.W.3d 227, 231
(Tex. App.—Dallas 2008, no pet.) (holding that a notice of appeal that did not
specify what order was being appealed from was nevertheless a bona fide attempt at
invoking appellate jurisdiction as “[t]here [was] no question . . . that appellants were
attempting to appeal [a particular discovery sanctions] order”); see also Tex. R. App.
P. 26.3 (authorizing motions to extend time to file notices of appeal beyond normal
deadlines).

Finally, appellees have also requested damages pursuant to Texas Rule of
Appellate Procedure 45 on the basis that appellant brought this appeal solely for
delay as ostensibly evinced by appellant’s failure to observe the procedural
requirements for an appeal. However, since appellant has effectively invoked this
court’s appellate jurisdiction, and appellees have not provided any basis for such

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damages aside from their contention that this appeal is jurisdictionally defective, that
request is easily rejected. Cf. Glassman v. Goodfriend, 347 S.W.3d 772, 782 (Tex.
App.—Houston [14th Dist.] 2011, pet. denied) (holding that sanctions under Rule
45 are determined by “whether the advocate had reasonable grounds to believe the
case could be reversed”).

Accordingly, the court DENIES appellees’ motion to dismiss this appeal for
lack of jurisdiction and failure to comply with procedural rules and GRANTS
appellant’s motion for extension of time to file notice of appeal.

PER CURIAM

Panel Consists of Justices Bourliot, Poissant, and Wilson. (Wilson, J., dissenting).

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