Kenneth D. Eichner, P.C. v. Ben Dominguez, II, Parc Condominium Association, and Association Management Incorporated

IN THE SUPREME COURT OF TEXAS
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No. 20-0263
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KENNETH D. EICHNER, P.C., PETITIONER,

v.

BEN DOMINGUEZ, II, PARC CONDOMINIUM ASSOCIAITON, AND ASSOCIATION
MANAGEMENT INCORPORATED, RESPONDENTS

══════════════════════════════════════════
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE FOURTEENTH DISTRICT OF TEXAS
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PER CURIAM

Generally, a notice of appeal must be filed within thirty days after the trial court signs the

judgment being appealed. TEX. R. APP. P. 26.1. But that deadline is extended to ninety days if “any

party” files a motion for new trial or certain other post-judgment pleadings. TEX. R. APP. P. 26.1(a).

The issue in this case is whether rule 26.1(a) applies to an intervenor’s new-trial motion when the

trial court strikes the intervenor’s petition before it renders the final judgment. The court of appeals

held rule 26.1(a) does not apply, but we disagree. We reverse the court of appeals’ judgment and

remand the case to that court for further proceedings.

This suit began when a condominium owner sued his homeowners’ association and

property manager for wrongfully foreclosing their lien against his condominium. The owner’s

accounting firm—Kenneth D. Eichner, P.C.—intervened, asserting a superior lien right based on

a promissory note and security agreement the owner executed to pay for Eichner’s services. The
trial court initially granted summary judgment for the defendants, holding their lien was superior

to Eichner’s. The court of appeals reversed and remanded, holding Eichner’s lien was superior.

Kenneth D. Eichner, P.C. v. Dominguez, No. 14-16-00192-CV, 2017 WL 2561334, at *6, *9 (Tex.

App.—Houston [14th Dist.] June 13, 2017, no pet.) (mem. op.). On remand, the owner and

defendants reached a settlement agreement in which the owner agreed to pay the amount demanded

and the defendants agreed to return the condominium to the owner. In light of the settlement, the

trial court struck Eichner’s intervention petition and then rendered final judgment.

Eichner timely filed a motion for new trial twenty-eight days after the trial court signed the

final judgment. See TEX. R. CIV. P. 329b(a) (requiring new-trial motion be filed “within thirty days

after the judgment or other order complained of is signed”). He then filed a notice of appeal eighty-

seven days after the trial court’s final judgment. If appellate rule 26.1(a) applies, that notice was

timely. See TEX. R. APP. P. 26.1(a) (extending appellate deadline to ninety days if any “party”

timely files a motion for new trial within thirty days). But the court of appeals dismissed Eichner’s

appeal for want of jurisdiction, holding Eichner did not qualify as a “party” whose new-trial motion

could extend the appellate deadline. See Kenneth D. Eichner, P.C. v. Dominguez, No. 14-18-

00399-CV, 2020 WL 1026430, at *1–2 (Tex. App.—Houston [14th Dist.] 2020) (mem. op.).

The court of appeals acknowledged that Eichner could not appeal the interlocutory order

striking his intervention petition until after the trial court signed a final judgment. Id. at *2 (citing

Barrett v. Barrett, No. 14-03-00373-CV, 2004 WL 1925972, at *1 (Tex. App.—Houston [14th

Dist.] Aug. 31, 2004, no pet.) (mem. op.)). The court also acknowledged that Eichner could appeal

the final judgment by filing a notice of appeal within thirty days. Id. (citing TEX. R. APP. P. 26.1).

And the court acknowledged that Eichner could and did file a new-trial motion within thirty days

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after the trial court signed the final judgment. Id. But the court concluded that Eichner’s new-trial

motion did not extend the appellate deadline to ninety days under rule 26.1(a) because Eichner

“was not a party to the judgment.” Id. Because rule 26.1(a) extends the deadline if “any party”

files a new-trial motion, and because the trial court had struck Eichner’s intervention petition

before it rendered the final judgment, the court concluded that Eichner was a “nonparty” whose

new-trial motion could not extend the appellate deadline. Id.

We disagree with the court of appeals’ construction of rule 26.1(a). As the court

acknowledged, Eichner could not appeal the trial court’s interlocutory order striking his

intervention petition until after the trial court signed a final judgment. See Lehmann v. Har-Con

Corp., 39 S.W.3d 191, 195 (Tex. 2001) (“[T]he general rule, with a few mostly statutory

exceptions, is that an appeal may be taken only from a final judgment.”). At that point, the

interlocutory order merged into the final judgment, and Eichner had to appeal the judgment, not

the prior order. See Bonsmara Nat. Beef Co., LLC v. Hart of Tex. Cattle Feeders, LLC, 603 S.W.3d

385, 390 (Tex. 2020) (“When a trial court renders a final judgment, the court’s interlocutory orders

merge into the judgment and may be challenged by appealing that judgment.”). To the same extent

that Eichner was a “party” to the final judgment for purposes of the right to appeal that judgment

and to file a new-trial motion, he was also a “party” to the final judgment for purposes of extending

the appellate deadline under rule 26.1(a).

The rules that address these issues do not support the distinction the court of appeals has

drawn. Any “party who seeks to alter the trial court’s judgment or other appealable order must file

a notice of appeal.” TEX. R. APP. P. 25.1(c) (emphasis added). The “filing of a notice of appeal by

any party invokes the appellate court’s jurisdiction over all parties to the trial court’s judgment or

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order appealed from.” TEX. R. APP. P. 25.1(b) (emphasis added). The notice of appeal must “state

the name of each party filing the notice” and “must be served on all parties to the trial court’s final

judgment.” TEX. R. APP. P. 25.1(d)(5), (e) (emphases added). The notice of appeal must be filed

within thirty days after the judgment is signed, but the deadline is extended to ninety days “if any

party timely files” (1) a motion for new trial, (2) a motion to modify the judgment, (3) a motion to

reinstate under Texas Rule of Civil Procedure 165a, or (4) under some circumstances, a request

for findings of fact and conclusions of law. TEX. R. APP. P. 26.1(a) (emphasis added). The timely

filing of a new-trial motion “by any party” also extends the trial court’s plenary jurisdiction “until

thirty days after all such timely-filed motions are overruled.” TEX. R. CIV. P. 329b(e) (emphasis

added). Nothing in the text of these rules supports the notion that a party intervening prior to final

judgment whose petition has been struck qualifies as a “party” to the final judgment for purposes

of rules 25.1 and 329b but not for purposes of rule 26.1(a).

Whether an intervenor is a party to the final judgment depends on when the intervention

petition is filed. In support of its conclusion that rule 26.1(a) does not apply, the court of appeals

relied on Lapiner v. Maimon, 429 S.W.3d 816, 820–21 (Tex. App.—Houston [14th Dist.] 2014,

pet. denied) (plurality op.). In that case, a shareholder attempted to intervene in a shareholder-

derivative suit to contest a proposed settlement. Id. at 817. The trial court struck the intervention

and then rendered a final judgment approving the settlement. Id. at 819. The shareholder then

moved for an award of attorney’s fees and expenses. Id. After the trial court denied that motion,

the shareholder timely filed a motion for new trial, which was overruled by operation of law. Id.

at 819–20. The shareholder then filed a notice of appeal, more than thirty days but less than ninety

days after the trial court signed the final judgment. Id. Importantly, the shareholder challenged the

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trial court’s approval of the settlement agreement and its denial of his motion for attorney’s fees,

but he did “not appeal the trial court’s order striking his intervention.” Id. at 820. 1

A split panel dismissed the shareholder’s appeal for want of jurisdiction. The plurality

opinion concluded that the shareholder was a “nonparty” who could appeal the decision to strike

his intervention but could not extend the appellate deadline by filing a new-trial motion. Id. The

concurring Justice concluded that the shareholder was “not a ‘party’ who may appeal” at all. Id. at

827 (Frost, C.J., concurring). And the dissenting Justice concluded that the shareholder was a

deemed party under the doctrine of virtual representation and saw “no reason to create a trap by

interpreting the term ‘party’ differently” in rules 25.1 and 26.1. Id. at 848 (Busby, J., dissenting).

In concluding that the shareholder could not extend the appellate deadline by filing a new-

trial motion, the Lapiner plurality relied on two prior decisions, State & County Mutual Fire

Insurance Co. v. Kelly, 915 S.W.2d 224, 227 (Tex. App.—Austin 1996, no pet.), and Central

Mutual Insurance Co. v. Dunker, 799 S.W.2d 334, 336 (Tex. App.—Houston [14th Dist.] 1990,

writ denied). See Lapiner, 429 S.W.3d at 820–21. But in both those cases, the parties who sought

to intervene filed their intervention petition after the trial court had already signed a final

judgment. 2 By contrast, in Lapiner, and in this case, the intervention was filed and struck before

the trial court signed the final judgment. See id. at 819.

“Generally, only a named party to the suit may bring an appeal.” Sommers for Ala. &

1
The dissenting Justice pointed out that the shareholder’s notice of appeal did “in fact challenge the order
striking his intervention, although he later decided not to brief that issue.” Id. at 847 (Busby, J., dissenting).
2
See Kelly, 915 S.W.2d at 227 (“After judgment, a plea in intervention or motion to intervene cannot be
considered until after the judgment is set aside.”); Dunker, 799 S.W.2d at 335–36 (“Where final judgment has been
rendered, a plea in intervention comes too late and may not be considered unless and until the trial court first sets aside
its final judgment.”).
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Dunlavy, Ltd. v. Sandcastle Homes, Inc., 521 S.W.3d 749, 752 (Tex. 2017); see City of San Benito

v. Rio Grande Valley Gas Co., 109 S.W.3d 750, 754 (Tex. 2003) (“Under Texas jurisprudence, an

appeal can generally only be brought by a named party to the suit.”). 3 A person who attempts to

intervene in a case after the trial court has signed a final judgment is not bound by, is not a “party”

to, and cannot appeal the final judgment unless the trial court sets aside that judgment. State v.

Naylor, 466 S.W.3d 783, 788 (Tex. 2015); Citizens State Bank v. Caney Invs., 746 S.W.2d 477,

478 (Tex. 1988) (per curiam); First Alief Bank v. White, 682 S.W.2d 251, 252 (Tex. 1984) (per

curiam); Comal Cnty. Rural High Sch. Dist. No. 705 v. Nelson, 314 S.W.2d 956, 957 (Tex. 1958).

But a person who intervenes before the trial court signs a final judgment becomes a party

to that judgment. See Main Rehab. & Diagnostic Ctr., LLC v. Liberty Mut. Ins. Co., 376 S.W.3d

825, 828 (Tex. App.—Dallas 2012, no pet.); Hughes v. Hughes, 473 S.W.2d 304, 306–07 (Tex.

App.—Beaumont 1971), rev’d in part on other grounds, sub nom., Swilley v. Hughes, 488 S.W.2d

64 (Tex. 1972). If the court strikes the petition, the intervenor qualifies as a party who may appeal

the subsequent final judgment into which the order striking the intervention has merged, because

that judgment is binding on the intervenor. See, e.g., Quick v. City of Austin, 7 S.W.3d 109, 126

(Tex. 1998) (addressing intervenor’s appeal from order striking pre-judgment intervention).

Here, Eichner filed its intervention petition, the trial court orally rendered and signed an

order striking the intervention, and the trial court then signed a final judgment. The order striking

the intervention merged into the final judgment, so Eichner was a “party” who could appeal that

3
The doctrine of virtual representation provides an exception to this general rule. In determining whether a
person is a party, or deemed party, who can appeal, “the most important consideration is whether the appellant is
bound by the judgment.” City of San Benito, 109 S.W.3d at 755. Although Eichner argued alternatively that he
qualified as a party by virtual representation, we need not address that argument in light of our holding that he is a
party in his own right under appellate rule 26.1.
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judgment. See TEX. R. APP. P. 25.1(b)–(c). As a “party” to the judgment, Eicher could appeal the

judgment by filing a notice of appeal within thirty days after the trial court signed the judgment.

See TEX. R. APP. P. 26.1. Alternatively, it could file a new-trial motion within thirty days after the

trial court signed the judgment, which it did. See TEX. R. CIV. P. 329b(b). And because Eichner

was a “party” to the judgment, its timely filing of the new-trial motion extended the deadline for

filing a notice of appeal until ninety days after the trial court signed the judgment. See TEX. R.

APP. P. 26.1(a).

Because Eichner timely filed its notice of appeal, we grant its petition for review and,

without hearing argument, we reverse the judgment of the court of appeals and remand this cause

to that court for further proceedings consistent with this opinion. See TEX. R. APP. P. 59.1.

Opinion delivered: May 14, 2021

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