Filing a timely motion for new trial under the wrong cause number still invoked extended deadline for notice of appeal

Fort Bend County v. Melissa Ann Norsworthy, et al. 14-17-00633-CV (Tex. App— Houston [14th Dist.] February 15, 2018)

This is an appellate procedure case of interest mainly to litigators. The opinion is based on Fort Bend County’s motion to consolidate two appeals.

In a wrongful death/Texas Tort Claims Act case, Fort Bend County was sued by multiple plaintiffs. At least one plaintiff was severed and different orders were issued at different times. At one point, the County filed a motion for new trial after a summary judgment motion but attached the wrong cause number by mistake. On appeal, the plaintiff in the severed case asserts the notice of appeal was defective and untimely because the appellate timetable was not extended by the motion for new trial. The court considered the procedural aspects only for this opinion.

The Texas Supreme Court has consistently admonished that appellate decisions should turn on substance instead of technicalities. So as long as the appellant’s efforts constituted a bona fide attempt to invoke appellate jurisdiction courts should construe them as successful. 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. Examining the record from the hearing where this issue was discussed, the court held no party was confused or prejudiced by the technical error. As a result, the cases could be consolidated.

If you would like to read this opinion click here. Panel consists of Justice Frost, Busby and Wi. Justice Benavides Memorandum Opinion Per Curiam. The attorney listed for Morris K. Crosby and SBS / Bison Building Material, LLC is Paula Heirtzler Blazek. The attorney listed for Katlyn Norsworthy is Amy L. Mitchell. The attorney listed for Jacob David Norsworthy is Matthew Kendall. The attorneys listed for Fort bend county is Dean G. Pappas and Mary M. Markantonis. The attorney listed for Melissa Ann Norsworthy is Amy L. Mitchell.

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