Crofton v. Amoco Chemical Co
In Crofton v. Amoco Chemical Co., No. 01-01-00526-CV, 2003 WL 21297588 (Tex. App.--Houston 1st Dist. May 30, 2003, pet. denied), Wilson, one of the plaintiffs in the trial court and a party to the trial court's no-evidence summary judgment being appealed, was omitted from the original, timely filed notice of appeal.
Wilson's name was also omitted from the first amended notice of appeal, filed eight days after the original notice. Approximately four months later, appellants filed a second amended notice of appeal seeking to add Wilson as an appellant.
In response, appellees filed a motion to strike. The court did not consider the omission of Wilson's name a "'clerical defect' susceptible to correction by amendment. Rather, appellants' second amended notice of appeal was, in effect, Coy Wilson's first notice of appeal from the trial court's judgment." Id. (citing Tex. R. App. P. 25.1(f)).
As a result, Wilson's appeal was deemed untimely and dismissed. Id.
In Crofton v. Amoco Chemical Co., the appellants attempted to amend their notice of appeal a second time--four months after filing the original notice--to add a plaintiff whose name was missing from the appellate caption.
The appellees responded with a motion to strike that notice, invoking Texas Rule of Appellate Procedure 25.1(g), which allows the appellate court to strike an amended notice "for cause on the motion of any party affected by the amended notice." Id.; Tex. R. App. P. 25.1(g). Id.
The appellants in Crofton did not respond to the motion. See id. The decision to strike the amendment in Crofton, at the request of the appellees' unopposed motion to strike was within this court's discretion for good cause shown, as the rule contemplates. See id.
In Crofton, which constitutes binding precedent, the Court addressed the issue of whether a party, not named in an original notice of appeal, may subsequently be added as an appellant by way of an amended notice of appeal filed after the deadline for any additional parties to file their notices of appeal; see also Tex. R. App. P. 26.1(a), (d).
There, Coy Wilson, a plaintiff in the trial court and a party to the trial court's no-evidence summary judgment, had been "omitted" from the appellants' original notice of appeal.
The appellants then filed an "amended" notice of appeal months later, "seeking 'to correct a clerical defect or omission' and add . . . Wilson as an appellant." Id.; see also Tex. R. App. P. 25.1(g) (allowing amendment of notice of appeal to "correct a defect or omission in an earlier filed notice"). We, however, held that because the "amended notice of appeal was, in effect, . . . Wilson's first notice of appeal from the trial court's judgment, . . . it was untimely filed."
The Court explained that the "appellants' original notice of appeal was filed timely and included all named appellants save . . . Wilson, while the . . . amended notice of appeal was filed well after the appellate deadline for any additional parties to file a notice of appeal from the trial court's judgment." Id.
And, although the appellants' attorney explained that Wilson's name was "inadvertently" and "mistakenly" "omitted" from the original notice of appeal, we concluded that such an "omission" was not the type of "'defect' susceptible to correction by amendment" under rule 25.1(g). Id.
Because the "amended notice of appeal was, in effect, . . . Wilson's first notice of appeal" and "it was untimely filed," we held that we had no jurisdiction to consider the merits of Wilson's appeal. Id.