First State Bank, N.A. v. C.D. Morse, D/B/A 38th & Q Auto
This text of First State Bank, N.A. v. C.D. Morse, D/B/A 38th & Q Auto (First State Bank, N.A. v. C.D. Morse, D/B/A 38th & Q Auto) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
Pending before this Court is a joint motion to amend the notice of appeal filed by appellant First State Bank, N.A. (FSB) to include State National Bank of Lubbock (SNB). The motion is opposed by appellee C.D. Morse d/b/a 38th and Q Auto. For the reasons expressed herein, the motion is overruled.
In the underlying cause, Morse, as third party plaintiff, filed suit against FSB and SNB for, among other claims, breach of a subordination agreement. The parties stipulated during trial that following a merger, SNB is the successor to FSB. The banks were represented by separate counsel throughout trial. Following the jury's verdict and numerous post-trial motions, the trial court signed a judgment on January 14, 2005. (1) FSB and SNB filed separate motions for new trial. Two days after SNB filed its motion, it filed a motion withdrawing its motion for new trial.
On April 7, 2005, FSB filed a notice of appeal without referencing SNB. It also filed its requests to the clerk and reporter designating matters for inclusion in the appellate record. FSB filed its brief on August 30, 2005.
A notice of appeal may be amended to correct a defect or omission in an earlier filed notice. See Tex. R. App. P. 25.1(f). By their joint motion to amend filed September 23, 2005, FSB and SNB urge a liberal interpretation of Rules 2 and 25 to permit SNB to be added to FSB's notice of appeal. The banks further urge that amending the notice of appeal is appropriate because their rights are interwoven. They do not, however, suggest that an amendment would correct a defect or omission in an earlier filed notice.
By its response to the motion to amend, Morse contends the procedural history of the case indicates an intent by SNB not to pursue an appeal and, in fact, no bona fide attempt to appeal was made. According to Morse, SNB did not express an intent to become an appellant until after post-trial mediation failed to effect a settlement, FSB filed its brief, and Morse expressed interest in executing on SNB's assets.
Rule 25.1(c) provides that a party who seeks to alter a trial court's judgment must file a notice of appeal. The notice must state the name of each party desiring to appeal. See Tex. R. App. 25.1(d)(5). Rule 25.1(f) provides for amending a notice to correct a defect or omission in an earlier filed notice. Presumptively, the Rule does not contemplate amending a notice to add an additional appellant after the time for perfecting an appeal has expired. See McDonald & Carlson, Perfecting and Docketing the Appeal, 6 Texas Civil Practice § 13:12 (1998 ed.). We hold that Rule 25.1(f) does not permit amending FSB's notice of appeal to add SNB as an appellant after the time for perfecting the appeal lapsed. The prohibition against construing Rule 2 to alter the time in which to perfect an appeal in a civil case likewise requires us to overrule the motion.
Accordingly, the motion to amend FSB's notice of appeal is overruled.
Per Curiam
1. The judgment recites in part:
Based upon such stipulation, the Court finds, determines and orders that each and all claims and causes of action of Defendant and Third Party Plaintiff C.D. Morse against First State Bank, N.A., as well as all liabilities and obligations of Third Party Defendant First State Bank, N.A. which are the subject of this suit, are now the liability and responsibility of Third Party Defendant State National Bank of Lubbock. All liabilities of First State Bank, N.A. which are adjudicated in this cause against First State Bank, N.A. are hereby adjudged against State National Bank of Lubbock.
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First State Bank, N.A. v. C.D. Morse, D/B/A 38th & Q Auto, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-state-bank-na-v-cd-morse-dba-38th-q-auto-texapp-2005.