Opinion
NO. 14-17-00633-CV
02-15-2018
FORT BEND COUNTY, Appellant v. MELISSA ANN NORSWORTHY, Appellee
On Appeal from the 268th District Court Fort Bend County, Texas
Trial Court Cause No. 14-DCV-213052-B
MEMORANDUM OPINION
Appellant, Fort Bend County, filed a motion to consolidate this appeal with another appeal filed in trial court cause number 14-DCV-213052-B, which this court docketed as cause number 14-17-00520-CV. Appellant filed two notices of appeal attempting to appeal the same order signed April 21, 2017, in cause number 14-DCV-213052-B. As part of that order, the trial court severed all claims by appellant against Melissa Ann Norsworthy into trial court cause number 14-DCV-213052-B. Appellee Melissa Norsworthy filed a motion to dismiss this appeal because appellant's notice of appeal was untimely. We grant appellant's motion to consolidate, and consolidate the two appeals for all purposes. Following this court's binding precedent, we consolidate the issues, records, and documents filed in cause number 14-17-00633-CV into cause number 14-17-00520-CV. The consolidated appeal shall proceed under appeal number 14-17-00520-CV, and appeal number 14-17-00633-CV is hereby dismissed. Appellee's motion to dismiss is denied.
These two appeals arise out of the death of John Norsworthy in January 2011. John was fatally injured on December 27, 2010, while working as a Fort Bend County Deputy Sheriff when he swerved to avoid road debris that had fallen off of a flatbed delivery truck owned and operated by SBS/Bison Building Materials and driven by Morris Crosby. At the time of John's death, Fort Bend County paid workers' compensation benefits to John's widow, Melissa, and his surviving children, Jacob and Katlyn.
In 2014, in trial court cause number 14-DCV213052, Jacob Norsworthy, John's son, now an adult, sued SBS/Bison, Morris Crosby, and Samantha Allende (another driver who allegedly did not yield to John's emergency vehicle) for the wrongful death of John. In Jacob's second amended petition, he purported to bring his wrongful death claim on behalf of himself and all beneficiaries who have a wrongful death and survival cause of action, including Melissa and Katlyn. On May 22, 2015, the trial court in cause number 14-DCV213052 granted Allende's motion for summary judgment.
On January 15, 2016, Jacob, Katlyn, and Melissa in her capacity as Independent Administratrix of John's Estate, entered into settlement agreements with SBS/Bison and Crosby. In the settlement, Jacob and Katlyn each received $849,000. Melissa, as Independent Administratrix of the Estate, received $2,000. On January 26, 2016, Fort Bend County filed a petition in intervention seeking subrogation recovery for the workers' compensation benefits it paid to Jacob, Katlyn, and Melissa.
On April 21, 2017, the trial court signed an interlocutory summary judgment in favor of Melissa, and signed a severance order. The trial court granted Melissa's summary judgment motion and dismissed the claims against her in the subrogation case on the ground that she settled solely in her capacity as administratrix of the estate, and received no settlement funds herself. In that April 21, 2017 order, the trial court severed all claims against Melissa by Fort Bend County so that the judgment would become final on those claims. The order severed all claims into the cause number 14-DCV213052-B (the "B" case).
On May 19, 2017, Fort Bend County filed a document entitled, "Intervenor's Motion for New Trial as to Defendant in Intervention Melissa Norsworthy." Fort Bend County filed the motion for new trial in the main cause number, 14-DCV213052. In the motion, Fort Bend County complains solely of the court's decision to dismiss the claims against Melissa from the case because Melissa did not personally receive settlement proceeds.
On June 30, 2017, Fort Bend County filed a motion to consider its motion for new trial timely filed, stating that the inadvertent filing of the motion for new trial in the main cause number was a clerical error. During the hearing on Fort Bend County's motion for new trial, appellees' attorney argued that the motion had not been properly filed in the severed "B" case. The hearing was adjourned to give Fort Bend County's attorney time to respond to the filing argument. During the second hearing the trial court announced that it was going to grant the motion to consider the motion for new trial timely filed. On July 28, 2017, the trial court signed an order stating that Fort Bend County's motion for new trial was considered timely filed. On August 3, 2017, the trial court handwrote that the motion for new trial was timely filed as to the main cause number.
On July 3, 2017, Fort Bend County filed a notice of appeal in which it stated its intent to appeal the April 21, 2017 order of the trial court. The notice of appeal contained both the main cause number and the "B" cause number. This court docketed the appeal as appellate cause number 14-17-00520-CV. On July 28, 2017, Fort Bend County filed a second notice of appeal, in which Fort Bend County also stated its intent to appeal the April 21, 2017 order. This notice of appeal also contained both cause numbers and was docketed in this court as appellate cause number 14-17-00633-CV.
Subsequently, Fort Bend County filed a motion to consolidate the two appeals because they purport to appeal the same trial court order. Appellee responded to the motion to consolidate alleging both appeals should be dismissed because the judgment is not final in the main cause number and the notice of appeal is late in the "B" case. Appellee later filed a motion to dismiss also arguing that the judgment in the main case is not final, and the notice of appeal is late in the "B" case. Fort Bend County responded to appellee's motion to dismiss stating that it is not attempting to appeal the order in the main cause number. Our review of the record reflects that Fort Bend County has not attempted to appeal any order in the main cause number. Both notices of appeal clearly state that Fort Bend County is appealing the April 21, 2017 order, which was severed into the "B" case to permit an appeal of that order.
We next address the timeliness of Fort Bend County's notice of appeal in appellate cause number 14-17-00520-CV. Appellee argues that Fort Bend County's notice of appeal was due May 21, 2017, 30 days after the appealable order was signed because no motion for new trial was filed in the severed "B" case. A notice of appeal must be filed within 30 days after the judgment or appealable order is signed when the appellant has not filed a timely post-judgment motion. See Tex. R. App. P. 26.1. When the appellant has filed a timely post-judgment motion, the notice of appeal must be filed within 90 days after the date the judgment or appealable order is signed. See Tex. R. App. P. 26.1(a). Appellees assert, therefore, that Fort Bend County's July 3, 2017 notice of appeal is not timely.
Filing a timely motion for new trial under the wrong cause number or in the wrong case evinces a bona fide attempt to invoke appellate jurisdiction when no one is confused about or misled as to the judgment in question. City of San Antonio v. Rodriguez, 828 S.W.2d 417, 418 (Tex. 1992); Leal v. City of Rosenberg, 17 S.W.3d 385, 386 (Tex. App.—Amarillo 2000, no pet.). In this case, although Fort Bend County inadvertently filed the motion for new trial in the main cause number, it clearly attacked the severed judgment in the motion, and the parties discussed this exact issue during the hearing on the motion. The record reflects that the parties were not confused or misled by the incorrect cause number on the motion for new trial.
Appellee cites Philbrook v. Berry, 683 S.W.2d 378 (Tex. 1985), as support for the proposition that filing a motion for new trial in the wrong cause number does not extend the appellate time tables. While Philbrook supports appellee's contention, the Supreme Court of Texas has not strictly followed the Philbrook decision. See Blankenship v. Robins, 878 S.W.2d 138, 138-39 (Tex.1994) (holding that filing a motion for new trial in the wrong cause number and then filing a notice of appeal were actions constituting a bona fide attempt to invoke appellate court jurisdiction). Moreover, the Court of Criminal Appeals has held that the holding in Philbrook was superseded by the Rules of Appellate Procedure. See Few v. State, 230 S.W.3d 184, 188-90 (Tex. Crim. App. 2007).
Since Philbrook, the supreme court has consistently admonished that appellate decisions should turn on substance instead of technicalities and that as long as the appellant's efforts constituted a bona fide attempt to invoke appellate jurisdiction courts should construe them as successful. See Blankenship v. Robins, 878 S.W.2d at 138-39; City of San Antonio, 828 S.W.2d at 418; Mueller v. Saravia, 826 S.W.2d 608, 609 (Tex. 1992). Given this admonishment, courts now hold that filing a timely motion for new trial under the wrong cause number or in the wrong case evinces a bona fide attempt to invoke appellate jurisdiction when no one is confused about or misled as to the judgment in question. See In re J.M., 396 S.W.3d 528, 530 (Tex. 2013) ("this Court has consistently held that a timely filed document, even if defective, invokes the court of appeals' jurisdiction."); see also Sweed v. Nye, 323 S.W.3d 873, 875 (Tex. 2010).
We hold that Fort Bend County's motion for new trial filed in the main cause number complaining specifically of the April 21, 2017 order constituted a bona fide attempt to extend the appellate deadlines in the severed "B" case. Appellee's motion to dismiss is denied. Following this court's precedent, we grant Fort Bend County's motion and consolidate the two appeals for all purposes. See BBG Group, L.L.C. v. MBI Global, L.L.C., No. 14-12-00247-CV, 2012 WL 3241557, at *1 (Tex. App.—Houston [14th Dist.] Aug. 9, 2012, no pet.) (mem. op.) (consolidating issues, records, and documents in two appeals from same judgment into one appellate cause number and dismissing the second appeal after this consolidation). We consolidate the issues, records, and documents filed in cause number 14-17-00633-CV into cause number 14-17-00520-CV. See id. The consolidated appeal shall proceed under appeal number 14-17-00520-CV and shall be styled Fort Bend County v. Melissa Ann Norsworthy. The appeal in cause number 14-17-00633-CV is dismissed.
PER CURIAM Panel consists of Chief Justice Frost and Justices Busby and Wise.