Can a Defective Notice of Appeal Invoke Appellate Jurisdiction?

FOURTH COURT UPDATE

Can a Defective Notice of Appeal Invoke Appellate Jurisdiction?

By Justice Patricia O’Connell Alvarez

Generally, if a party seeks to alter a trial court’s judgment, that party must file a notice of appeal. Tex. R. App. P. 25.1(c). In the case of an attorney who seeks appellate review of sanctions imposed on him or her by the trial court, that attorney must join the client’s notice of appeal or file a separate notice. If either step is not taken, the attorney’s complaint regarding the judgment is procedurally defective. See State ex rel. Durden v. Shahan, 648 S.W.3d 339, 343–44 (Tex. App.—San Antonio 2021), aff’d in part, rev’d in part and remanded, No. 21-1003, 2022 WL 17998216 (Tex. Dec. 30, 2022). But, despite the procedural defect, can an appellate court still consider the case on its merits? In a recent per curiam opinion, the Supreme Court of Texas said, “Yes.” State ex rel. Durden v. Shahan, No. 21-1003, 2022 WL 17998216, at *3 (Tex. Dec. 30, 2022).

The underlying three suits were filed by Todd Durden in his official capacity as Kinney County Attorney. Among other things, Durden claimed that when Kinney County officials reduced his salary, they violated provisions of the Open Meetings Act, the Local Government Code, and Durden’s due process rights. On summary judgment, the trial court concluded Durden had no legal authority to bring the civil suits on behalf of the State, and it sanctioned Durden personally by ordering him to pay the defendants’ attorney’s fees and costs.

Durden filed notices of appeal—and later, notices of accelerated appeal—identifying the State of Texas as the appellant and Durden, in his official capacity, as the State’s attorney. Durden did not file notices of appeal in his individual capacity. Durden’s notices of appeal also included the following statement: “This is a comprehensive appeal of all issues and as to all parties affected by the [final order].” The Fourth Court of Appeals affirmed the trial court’s judgments on the issue of legal authority, but it dismissed Durden’s sanctions complaints for want of jurisdiction because Durden failed to file notices of appeal in his individual capacity. Durden, 648 S.W.3d at 346–47.

The Supreme Court of Texas agreed that Durden lacked authority to initiate the suits on behalf of the State and acknowledged that Durden’s attempts to appeal the sanctions were procedurally defective. Durden, 2022 WL 17998216, at *3. But the Supreme Court disagreed with the dismissal of Durden’s sanctions issues. It noted that Durden’s “notices expressly described his intent to appeal ‘all issues and as to all parties affected by the Order, which dismisses this case for want of jurisdiction and taxes costs.’” Id. The Supreme Court added that “the parties undoubtedly understood that the sanctions orders were at issue on appeal, and thus there is no question of unfair surprise or confusion.” Id. Durden’s briefs argued against the sanctions. Likewise, “defendants responded to Durden’s arguments in their own briefs, urging the court of appeals to uphold the sanctions orders.” Id. The Supreme Court then concluded that “Durden made a ‘bona fide’ attempt to invoke appellate jurisdiction over the sanctions orders.” Id.

Durden shows the Supreme Court’s insistence “that appeals should be decided on the merits rather than dismissed for a procedural defect, and a failure to comply with procedural formalities need not cause inevitable dismissal.” Id. The Durden “bona fide” exception to Rule 25.1(c) would appear to apply only when (a) a party to a judgment does not file its own

notice of appeal on a complaint that the party intended for the appellate court to address, (b) the record shows that all parties understood that the party’s complaint was at issue on appeal, and (c) the party to the judgment makes a bona fide attempt to invoke appellate jurisdiction. So long as the appellate court has jurisdiction (i.e., a timely-filed notice of appeal or petition for review), an attorney who wants to challenge individual sanctions, but who did not file or join a notice of appeal individually, may be saved by the Durden party exception.

Although the Durden party exception may—in the end—preserve a party’s appeal of individual sanctions, the better practice is to simply file or join a notice of appeal in one’s individual capacity.

Justice Patricia O’Connell Alvarez is Board Certified in Personal Injury Trial Law and is a member of many organizations, including the American Board of Trial Advocates. She dedicates her free time to mentoring law students in the art of trial and appellate advocacy.