Frank C. Powell v. Kevin Alan Fletcher ( 2022 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Catherine Murrah Molloy v. Kevin Alan Fletcher
Appellate case number: 01-20-00322-CV
Trial court case number: 2018-67151
Trial court: 257th District Court of Harris County
In this appeal, Catherine Molloy, now deceased, and her former counsel, Frank A. Powell,
challenge the trial court’s February 26, 2020 order denying recusal and imposing sanctions against
Molloy and Powell.
Appellees have filed several motions to dismiss and supplements to those motions, arguing
first that we should dismiss Molloy’s appeal because her notice of appeal was untimely filed.
Although the notice of appeal and a motion for extension of time to file the notice of appeal were
both filed within 15 days of the deadline to file the notice of appeal, appellees argue in their motion
to dismiss filed on April 17, 2020 that we should deny the motion for extension and dismiss the
appeal on the ground that the motion contains no explanation for the delay. We disagree.
In the motion for extension of time to file notice of appeal, filed on April 10, 2020,
Molloy’s counsel asserts that he has been busy with other cases and that his firm has essentially
been shut down for Covid. In April 2020, most courts and law firms were working remotely or
shut down for Covid precautions. The Texas Supreme Court has held that a reasonable explanation
for delay in filing a notice of appeal is “‘any plausible statement of circumstances indicating that
failure to file within the specified period was not deliberate or intentional, but was the result of
inadvertence, mistake or mischance.’” Hone v. Hanafin, 104 S.W.3d 884, 886 (Tex. 2003)
(quoting Meshwert v. Meshwert, 549 S.W.2d 383, 383–84 (Tex., 1977)). We hold that relator’s
motion for extension contains a reasonable explanation and we grant that motion. We deny the
April 17, 2020 motion to dismiss.1 On April 29, 2020, appellees filed a second motion to dismiss,
raising the same complaints. We deny this motion as well.
On June 30, 2020, Powell filed a motion to withdraw as counsel for Molloy. We grant
that motion.
1
In their motion, appellees also ask that we consolidate this appeal with the appeal in case number
01-19-00840-CV. We deny this request because the appeal in 01-19-00840-CV has already been
dismissed.
On July 9, 2020, Powell filed an amended notice of appeal, adding his challenge to the trial
court’s order imposing sanctions against him and Molloy. On September 10, 2020, appellees filed
a motion for sanctions and a motion to adopt the trial court’s recommendations that Molloy’s
appeal be dismissed in accordance with her wishes as determined by the trial court in its findings
and conclusions filed in a supplemental clerk’s record in this Court in appellate case number 01-
19-00840-CV. We grant this motion in part, and order Molloy’s portion of the appeal in this
case dismissed. Powell’s appeal remains pending. We order the portion of this motion requesting
the imposition of sanctions recommended by the trial court carried with the case.
On April 29, 2021, appellees filed a supplemental motion to dismiss, requesting a ruling
on appellees’ motions to dismiss Molloy’s motion for extension of time to file notice of appeal
and dismissing Powel’s notice of appeal. Previously in this order, the Court has granted Molloy’s
motion for extension of time to file notice of appeal. We have also granted the motion to dismiss
Molloy’s portion of the appeal based on the trial court’s recommendation. Appellees also ask that
we dismiss Powell’s portion of the appeal for lack of prosecution. But, Powell filed his brief on
July 30, 2020.
Appellees also argue that Powell’s notice of appeal was untimely filed. Powell argued that
he filed an amended notice of appeal and therefore, it gave this Court jurisdiction to consider the
merits of his appeal from the trial court’s February 26, 2020 order. We agree. See St. Mina Auto
Sales, Inc. v. Al-Muasher, 481 S.W.3d 661, 666 (Tex. App.—Houston [1st Dist.] 2015, pet. denied)
(holding that attorney’s amended notice of appeal filed six weeks after original notice of appeal
was filed was sufficient to constitute bona fide attempt to invoke our appellate jurisdiction).
Accordingly, we deny appellees’ April 29, 2021 supplemental motion to dismiss.
Appellee’s brief in response to Powell’s appellant’s brief is ordered filed within 30 days of
the date of this order.
It is so ORDERED.
Judge’s signature: _____/s/ Peter Kelly________
 Acting individually  Acting for the Court
Panel consists of Justices Kelly, Landau, and Hightower.
Date: ___December 15, 2022____