Margaret Cannon v. Officer Tristan Lopez

• Court: Court of Appeals of Texas
• Decided: January 23, 2015
• Docket: 10-15-00011-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-14-00357-CV No. 10-15-00011-CV No. 10-15-00012-CV

MARGARET CANNON, Appellant v.

DEPUTY MELVIN BOWSER, OFFICER BOBBY WILLIAMS, OFFICER TRISTAN LOPEZ, MICHAEL FORMICHELLA, CONNIE SPENCE, AND THE CITY OF BRYAN, Appellees

From the 272nd District Court Brazos County, Texas Trial Court Nos. 13-002189-CV-272, 13-002189-CVB-272 and 13-002189-CVD-272

MEMORANDUM OPINION

On November 19, 2014, appellant, Margaret L. Cannon, filed her first pro-se

notice of appeal in this matter. In this notice of appeal, Cannon indicated that she

wished to appeal trial-court orders dismissing her claims against the City of Bryan, Officer Bobby Williams, and Officer Tristan Lopez. Upon filing, this Court assigned the

following appellate cause number to this entire matter: 10-14-00357-CV.1

A. CANNON’S CLAIMS AGAINST OFFICER LOPEZ

A review of the record indicates that the trial court granted a motion to sever

filed by Officer Lopez and, thereby, assigned a new trial court cause number for

Cannon’s claim against Officer Lopez—13-002189-CVB-272. The trial court then

dismissed Cannon’s claim against Officer Lopez. Therefore, on our own motion, we

sever Cannon’s appeal of the dismissal of her claims against Officer Lopez from her

other claims in this matter. See TEX. R. APP. P. 43.6. The Clerk shall docket Cannon’s

appeal of the dismissal of her claims against Officer Lopez as 10-15-00011-CV, styled

Cannon v. Officer Tristan Lopez.

While this case has been pending, we have received a motion to dismiss filed by

Officer Lopez, wherein he argues that this Court lacks jurisdiction over Cannon’s

appeal because Cannon did not timely file her notice of appeal as to him. The record

reflects that the trial court dismissed Cannon’s claims as to Officer Lopez and severed

the cause of action on September 15, 2014. However, Cannon did not file her notice of

appeal challenging the judgment rendered in favor of Officer Lopez until November 19,

2014, sixty-five days after the trial court signed its judgment.

1A review of the record indicates that Cannon filed suit against Michael Formichella in the main action. Apparently, the trial court dismissed Cannon’s claim against Formichella on July 7, 2014. A closer examination of the record shows that Cannon did not file a notice of appeal as to Formichella. Nevertheless, Formichella has been named as an appellee in this matter.

On December 23, 2014, this Court received a motion to dismiss filed by Formichella, arguing that any appeal against him should be dismissed for lack of jurisdiction. Because the record does not contain a notice of appeal referencing Formichella, we therefore grant Formichella’s motion to dismiss.

Cannon v. The City of Bryan, et al Page 2 By letter dated November 26, 2014, this Court informed Cannon that her notice

of appeal as to Officer Lopez appeared to be untimely. After warning Cannon that her

appeal could be dismissed, this Court requested that Cannon file a compliant notice of

appeal and a response showing grounds for continuing this appeal. See id. at R. 26.1,

42.3, 44.3.

Cannon filed a response to our November 26, 2014 letter, and after reviewing the

response, we conclude that Cannon’s notice of appeal as to Officer Lopez was untimely.

See id. at R. 26.1(a) (providing that a notice of appeal must be filed within thirty days

after the judgment is signed). Accordingly, Cannon’s appeal in appellate cause number

10-15-00011-CV is dismissed.

B. CANNON’S CLAIMS AGAINST THE CITY OF BRYAN AND OFFICER WILLIAMS

Furthermore, the record reflects that, on September 15, 2014, the trial court

dismissed Cannon’s claims against the City of Bryan and Officer Williams. The trial

court did not sever these claims from the main lawsuit. In any event, in our letter dated

November 26, 2014, we notified Cannon that her notice of appeal as to the City of Bryan

and Officer Williams appeared to be untimely. As we did with the claim against Officer

Lopez, we warned Cannon that her appeal as to the City of Bryan and Officer Williams

would be dismissed, unless she filed a compliant notice of appeal and a response

showing grounds for continuing the appeal. Cannon filed a response, and shortly

thereafter, the City of Bryan and Officer Williams filed a motion to dismiss Cannon’s

appeal for lack of jurisdiction, arguing that Cannon’s notice of appeal was not timely

filed. After reviewing the record, including Cannon’s response and the motion to

Cannon v. The City of Bryan, et al Page 3 dismiss filed, we conclude that Cannon’s notice of appeal as to the City of Bryan and

Officer Williams is untimely, especially considering that her notice of appeal was filed

sixty-five days after the trial court signed its judgment. See TEX. R. APP. P. 26.1(a).

Ordinarily, we would simply dismiss Cannon’s entire appeal for this fatal flaw.

However, claims against another defendant named in the underlying lawsuit remains.

Because of this, on our own motion, we sever Cannon’s appeal of her claims against the

City of Bryan and Officer Williams. See id. at R. 43.6. The Clerk shall docket Cannon’s

appeal of her claims against the City of Bryan and Officer Williams as 10-15-00012-CV,

styled Cannon v. City of Bryan and Officer Bobby Williams. And given that Cannon’s

notice of appeal as to the City of Bryan and Officer Williams is untimely, we dismiss

appellate cause number 10-15-00012-CV.

C. CANNON’S SECOND NOTICE OF APPEAL

On November 24, 2014, Cannon filed a second pro-se notice of appeal,

challenging the trial court’s dismissal of her claims against Connie Spence. Under

Texas Rule of Appellate Procedure 12.2(c), the Clerk of this Court assigned the same

appellate cause number—10-14-00357-CV—for Cannon’s second notice of appeal as was

done for Cannon’s first notice of appeal. See TEX. R. APP. P. 12.2(c) (“All notices of

appeal filed in the same case must be given the same docket number.”). The record

reflects that the trial court signed its judgment dismissing Cannon’s claims against

Spence on October 23, 2014. And based on our calculations, Cannon’s appeal as to

Cannon v. The City of Bryan, et al Page 4 Spence appears to be timely.2 See id. at R. 4.1(a), 26.1. Accordingly, Cannon’s appeal as

to Spence remains pending in appellate cause number 10-14-00357-CV.3

AL SCOGGINS Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Appeals severed and dismissed Opinion delivered and filed January 22, 2015 [CV06]

2 As stated earlier, the trial court dismissed Cannon’s claims as to Spence on October 23, 2014. Under Texas Rule of Appellate Procedure 26.1(a), Cannon’s notice of appeal as to Spence was due on November 22, 2014. See TEX. R. APP. P. 26.1(a). However, November 22, 2014 fell on a Saturday. Therefore, pursuant to Texas Rule of Appellate Procedure 4.1(a), Cannon’s notice of appeal as to Spence was due on November 24, 2014. See id. at R. 4.1(a) (“The last day of the period is included, but if that day is a Saturday, Sunday, or legal holiday, the period extends to the end of the next day that is not a Saturday, Sunday, or legal holiday.”).

3 We note that, on October 23, 2014, the trial court not only dismissed Cannon’s claim against

Spence, but also severed the cause of action from the main action. Cannon’s claim against Spence was assigned a new trial court cause number—13-002189-CVD-272. Ordinarily, we would assign a new appellate cause number for this claim; however, given that we have severed Cannon’s claims against Officers Lopez and Williams and the City of Bryan from the main action, there is no need to create another new appellate cause number.

Cannon v. The City of Bryan, et al Page 5