Reversed and Remanded; Cross

- Appeal Dismissed as Moot; and Majority

Opinion and Concurring and Dissenting Opinion filed September 1 , 2022.

In The 

## Fourteenth Court of Appeals

NO. 14

- 21

- 00165

- CV

DONALD WELSH AND LIS A MARSHALL , Appellant s / Cr o ss - Appe ll ee s
V.
RIVER HOLLOW ASSOCIA TION , A ppellee / Cr o ss - Appella nt

On Appeal from the 113th District Court

Harris County, Texas Trial Court Cause No. 2020

- 43000

C O NCURR ING AND DISSENTING OPINION

W hile I generally join the opinion and concur in almost all of t he judgment, I
dissent to the por t ion of the judgment and do not join the corres ponding portio n of
th e court ’ s opinion that treats this pro ceeding as two separate appeals with only

one case number merely because both plaintiffs and def endant have file d n ot ic es of appeals ( “ We dismiss as m o ot the HOA ’ s cross

- appeal. ” )

.2

The court fundam entally misund erstands the histor y of taking an appeal
fro m the trial court to the intermediate appellate court , both before and after the
19 97 adop tion of the current Texas Ru l e s of Appellate P ro cedure effective September 1, 1997. 1 The pre vi ous pro cedur e under the 1 986 Texas Rules of Appellate Procedu re (and before that under the Texas Rules of Civil Procedure) is discussed in the concurring opinion in Donwerth v. Preston II Ch ry sler

- Dodge,
In c

. , 775 S.W.2d 634
, 640 (Tex. 1989) ( Ray, J., co ncurring) ( exp laining in part proper use of term cross

- point in the courts of appeals as “ necessary only when expressly required by the rules, or when the appellee seeks to complain of some

ru li ng by the tr ial court ” and citing Jackson v. Ewton
, 4 11 S. W.2d 715, 717 (Tex. 1967) )

. Justice Ray in his concurrence , joined by Justices Mauzy and Hecht, stated:

I believe it is time to adopt a single, consistent procedure for perfection of appeals in Te xa s c ourts. I suggest two alternatives; there may be others. One is that the filing of a cost bond by any party to a case invokes the jurisdiction of the appellate court for the benefit of all pa rties. If the appellant complains as to only one appellee i n a mul tiple p ar ty case, that appellee may, without perfecting an independent appeal, complain of any other party. If the appellant abandons his appeal or loses his right to continue, any other par ty may take up the burden of furnishing a record and contin ui ng th e appea l. This is the usual procedure for appeals to th e Texas courts of appeals although numerous exceptions have been made, mostly in multiple party cases. The other alternative is that an y party who seeks more or different relief from that provid ed b y t he tria l court's judgment must perfect his own appeal. An appellee may urge any ground in support of the trial court's judgment without perfecting an appeal, but he cannot complain of the ju dgment on the basis that some other party has appealed. Thi s is ge nerally t he procedure for appeal to this court and to t he United States courts of appeals. I do not attempt to present a comparison of the benefits and detriments of these two approaches. My

1 F inal Approva l of Revisions t o th e Texas Ru l es of Appellate Pr o cedure, 60 Tex. B.J. 876 (Tex. & Tex. Crim. Ap p

. 1997) ( authorizing revised Texas Ru l es of Appellate Procedure to be effective Sept. 1, 1997).3

point is simply that our justice system would be well serv ed b y a simple
, consistent, comprehensive, easily applied set of rules applicable in all appeals

. Donwerth
, 775 S.W.2d at 64 3

– 4 4 ( Ray, J., concurring)

. Ei g ht years l a ter the supreme court resolve d the “ Donwerth issue ” as part of
the adopt ion of t he 1997 Te xa s Rules of A pp ellate Procedure
, ch oosing t he fed eral

approac h for interme d ia te courts of a ppeals
, (1) ab olishing the cost bond as the means of perfecting an appeal
, (2) requiring a party “ taking an appeal to an appellate c ourt ” (an appellant) and “ who se ek s to alter t he trial cour t ’ s judgment or
other a ppealable or der ” to file a notice of appeal
, and (3) for the most part eliminating the concept of a c ross

- appeal with cro ss

- points

. 2 Tex. R. App. P. 3.1(a) , 25.1(c)

. The former general notion that a n app e ll ee could se ek more or different relief from that provided by the trial court ’ s judgment by a cross

- appeal
with cro ss

- points

—

bu t without h aving to perfect a separate appeal

— was abolish ed
in favor of requiring eve ry party see king more or different relief t o be co me an appellant and file a notice o f appeal. 3

W hether t he appeal to the intermediate court of appeals was taken under the
former Texas Rules of Civil Procedure, the former 1986 T exas Rules of Appellate Procedure, or the curre n t T exas Rules of Appell a t e P ro cedur e , there is only one appeal , r egardle ss o f the number of appellants or the fact that some appellants are also ap pellees (and vice versa)

. 4 I would dismiss as moot the two issues brou g h t by

2 “ We cannot, of course, attempt t o formulat e su ch rules in the context of the simple facts of this cause. We can, however, consider this problem in our continuing study and revision of the Texas Rules of Appellate Procedure. ” Donwerth
, 775 S.W.2d at 64 4 ( Ray, J., concurring)

.

3 A true cross

- point s u r vi ve s related to a judgment notwithstanding the findings o f the jury

. See Tex . R. Civ. P

. 324(c).

4 A case style that reflects the current appell a te rules would be “ Donald Welsh and Lisa Marshall , Appellant s v. River Hollow Association , Appellee and Rive r Ho ll o w Association
, Appellant v

. Donald Welsh and Lisa Mar shall , Appellee s

. ” I agree t ha t while more accurate, that4

t he H OA as appellant. Even th ough the HOA file d a notic e o f ap peal (and is therefore an appellan t), there i s s till only one appeal, and this court errs in

“ dismissing ” the HOA ’ s appeal

. As Chief Justice Calvert has implored his appellate colleagues throu g h the decades, “ A correct d raft of a judgment to be incl u d e d in an opin ion which has
been written wit h care shou ld be the final challenge to the writing judge. ” Robert W. Calvert, “ Appellate Court Judgments or Strange T hings Happen on the Way to Judgment, ” 6 Tex. Tech. L. Rev. 915. 925 (197 5 )

. I respectfully di s s e nt t o the

por tion of our judgment dismissi n g “ HOA ’ s c ross

- appeal ” and otherwise concur in the judgment

.

/s/ Charles A. Spain J usti ce

Panel con sists of J ustice s Wi se, Spa in , a nd Hassan (Wise, J., majorit y )

.

style is more cumbersome.