Michael Wheeler, Ronald Raymaker, Jon Fletcher, John Escoto, Katherine Reyer, William Ferebee, Jacon Reuvers and Deborah Pilcher v. Law Office of Frank Powell & Frank C. Powell ( 2022 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Michael Wheeler, Ronald Raymaker, Jon Fletcher, John Escoto,
Katherine Reyer, William Ferebee, Jacon Reuvers and Deborah
Pilcher v. Law Office of Frank Powell & Frank C. Powell
Appellate case number: 01-22-00479-CV
Trial court case number: 2022-14468
Trial court: 61st District Court of Harris County
This is an accelerated appeal from the trial court’s June 14, 2022 interlocutory order
denying the motion to dismiss under the Texas Tort Claims Act filed by appellants Michael
Wheeler, Ronald Raymaker, Jon Fletcher, John Escoto, Katherine Reyer, William Ferebee, Jacon
Reuvers, and Deborah Pilcher. In filing their notice of appeal, appellants cited to Texas Civil
Practice and Remedies Code section 51.014(a)(8).
Appellees, Law Office of Frank Powell and Frank C. Powell, have filed a motion to dismiss
this appeal for lack of jurisdiction. Appellees argue that appellants cited to a statute that is
inapplicable to the facts of the case. Appellees claim that this Court lacks jurisdiction because
appellants filed a notice of appeal under Section 51.104(a)(8), which is applicable only to a
governmental unit. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8) (permitting appeal from
interlocutory order granting or denying plea to jurisdiction by governmental unit). Because
appellees contend that none of the appellants were sued in their official capacity, appellees assert
that the notice of appeal is defective.
But “a court of appeals has jurisdiction over an appeal when the appellant files an
instrument that is ‘a bona fide attempt to invoke appellate jurisdiction.’” City of San Antonio v,
Rodriguez, 828 S.W.2d 417, 418 (Tex. 1992) (quoting Grand Prairie Indep. Sch. Dist.. v. So. Parts
Imports, Inc., 813 S.W.2d 499, 500 (Tex. 1991 (per curiam) (emphasis omitted). “[D]ecisions of
the courts of appeals [should] turn on substance rather than procedural technicality.” Crown Life
Ins. Co. v. Estate of Gonzalez, 820 S.W.2d 121, 121 (Tex. 1991).
On September 2, 2022, appellants filed a motion for leave to file an amended notice of
appeal. Appellees oppose this motion. This motion notes that the amended notice of appeal cites
to Section 51.014(a)(5) rather than 51.014(a)(8). Section 51.014(a)(5) permits an interlocutory
appeal of the denial of summary judgment based on an assertion of immunity by an individual who
is an officer or employee of the state or a political subdivision of the state. See TEX. CIV. PRAC. &
REM. CODE § 51.014(a)(5). It is of no consequence that the judgment in this case does not involve
a judgment denying a summary judgment motion asserting immunity. See Austin State Hosp. v.
Graham, 347 S.W.3d 298, 300–01 (Tex. 2011) (holding that Section 51.014(a)(5) is not limited to
summary judgments but may apply to order denying motion to dismiss under Texas Tort Claims
Act).
Rule 25.1(g) contemplates that a notice of appeal might be defective when filed and permits
the filing of an amendment to correct the defect. See TEX. R. APP. P. 25.1(g). Although they
oppose the motion for leave to amend the notice of appeal, appellees have not filed a written
opposition arguing that the statute cited in the amended notice of appeal, Section 51.014(a)(5), is
inapplicable. This, together with the Texas Supreme Court’s admonishment for courts of appeals
to avoid dismissal on procedural grounds when a party has made a bona fide attempt to invoke the
appellate court’s jurisdiction, requires us to apply the rules of procedure liberally to reach the
merits of an appeal whenever possible. See, e.g., Warwick Towers Council of Co-Owners ex rel.
St. Paul Fire & Marine Ins. Co. v. Park Warwick, L.P., 244 S.W.3d 838, 839 (Tex. 2008). Because
appellants have moved to amend their notice of appeal and have now cited to a statute that appears
to apply to the facts of this case, the motion to dismiss is denied.
The motion to amend the notice of appeal is granted. The amended notice of appeal was
filed in the trial court on September 2, 2022 and is accepted by this Court as a valid amended
notice of appeal.
It is so ORDERED.
Judge’s signature: ______/s/ Richard Hightower________
 Acting individually  Acting for the Court
Date: _October 6, 2022____