Opinion
NO. 01-16-00999-CV
12-12-2017
CORTINA TAYLOR, INDIVIDUALLY, AND KEERA MOUTON, FORMERLY CORTINA TAYLOR AS MOTHER A/N/F OF KEERA MOUTON, MINOR, Appellants v. MARK JONES, AOF/HOUSTON AFFORDABLE HOUSING CORP., AND AOF/HOUSTON AFFORDABLE HOUSING CORP. DBA WATERFORD PLACE APARTMENT HOMES, Appellees
On Appeal from the 127th District Court Harris County, Texas
Trial Court Case No. 2012-37888
MEMORANDUM OPINION
Appellants, Cortina Taylor, individually, and Keera Mouton, formerly Cortina Taylor as Mother a/n/f of Keera Mouton, Minor, (collectively "Taylor"), attempt to appeal from the trial court's order granting the motion for summary judgment of appellees, AOF/Houston Affordable Housing Corp. and AOF/Houston Affordable Housing Corp., dba Waterford Place Apartment Homes (collectively "AOF/Houston"). We dismiss the appeal for want of jurisdiction.
In 2012, Taylor filed suit against Ascension Point, LP and Ascension Point, LP, d/b/a Waterford Place Apartment Homes (collectively "Ascension Point"), and Mark Jones. Taylor later filed amended petitions naming AOF/Houston as a defendant. AOF/Houston answered and filed a traditional and no-evidence motion for summary judgment. On November 21, 2016, the trial court granted AOF/Houston's summary judgment motion, ordered that Taylor take nothing against AOF/Houston, dismissed all claims against AOF/Houston with prejudice, and taxed court costs against Taylor.
On December 21, 2016, Taylor filed a notice of appeal "of the Judgment signed by the Court on November 21, 2016." The Clerk of this Court notified Taylor that the clerk's record filed in this appeal indicated that the trial court's summary judgment order did not dispose of all parties and claims, specifically noting Taylor's claims against Jones. The Clerk further notified the parties that the Court might dismiss the appeal unless she filed a supplemental clerk's record showing that all claims had been resolved or a response demonstrating that the Court has jurisdiction over this appeal. Taylor has not responded.
Generally, appellate courts have jurisdiction only over appeals from final judgments. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); N.E. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966). To be final, a judgment must dispose of all issues and parties in a case. Aldridge, 400 S.W.2d at 895. And, when there has been no traditional trial on the merits, no presumption arises regarding the finality of a judgment. Crites v. Collins, 284 S.W.3d 839, 840 (Tex. 2009) (citing Lehmann, 39 S.W.3d at 199-200). A summary judgment order is final for purposes of appeal only if the order "actually disposes of all claims and parties then before the court . . . or it states with unmistakable clarity that it is a final judgment as to all claims and all parties." Lehmann, 39 S.W.3d at 192-93; see Duke v. Am. W. Steel, LLC, 526 S.W.3d 814, 816 (Tex. App.—Houston [1st Dist.] 2017, no pet.).
Here, the summary judgment order "does not unequivocally express an intent to dispose of all claims and all parties" but specifically disposes only of Taylor's claims against AOF/Houston. Crites, 284 S.W.3d 841. A judgment that "expressly disposes of some, but not all defendants," is final when remaining defendants have not been served or answered and "nothing in the record indicates that plaintiff ever expected to obtain service on the unserved defendants, such that the case 'stands as if there had been a discontinuance' as to the unserved defendants." In re Sheppard, 193 S.W.3d 181, 187 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding) (quoting Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 232 (Tex. 1962)). A failure to effect service of process against an unserved defendant does not, by itself, demonstrate a lack of intent to serve the defendant. In re Sheppard, 193 S.W.3d at 188.
In her original petition, Taylor named Jones as a defendant and asserted that his address was unknown at the time of filing of the petition but service could be "effected by personal delivery at his home address, after discovery of the same." She asserted claims for "assault—infliction of bodily injury," "assault by offensive physical contact," and intentional infliction of emotional distress against him, and sought actual and exemplary damages from him. Taylor also asserted claims against Jones in two amended petitions. AOF/Houston then moved to designate Jones as a responsible third party, asserting that, although he was "a named party, [Taylor had] not served him with process and he [had] not made an appearance in this case" and sought "to make Mark Jones a formal party to this proceeding." The trial court granted the motion and ordered that Jones "be named as a responsible third party and that he be submitted to the jury[.]"
Thereafter, Taylor filed two additional amended petitions. In each amended petition, she again named Jones as a defendant and asserted claims for "assault—infliction of bodily injury," "assault by offensive physical contact," and intentional infliction of emotional distress against him, and sought actual and exemplary damages from him. The most recent petition stated:
Defendant Mark Jones, is an individual who is believed to be a resident of Houston, Harris County, Texas. His address is unknown at the time of the filing of this . . . Amended Petition. Service of Defendant Mark Jones, can be effected by personal delivery at his home address, after discovery of the same.Nothing in the record indicates that Taylor did not expect to obtain service on Jones or had discontinued her suit as to him. Accordingly, a signed, written order disposing of Taylor's claims against Jones would be necessary for a final, appealable judgment. See Wanzer v. Mendoza, No. 04-05-00505-CV, 2005 WL 2368007, at *1 (Tex. App.—San Antonio Sept. 28, 2005, no pet.) (mem. op.) (citing M.O. Dental Lab. v. Rape, 139 S.W.3d 671, 675 (Tex. 2004)). Because the November 21, 2016 order does not dispose of all parties and all claims in the trial court proceeding, we conclude that the order is not final and appealable.
It appears that Taylor nonsuited her claims against Ascension Point before the trial court signed the November 21, 2016 summary judgment order. However, the clerk's record does not show that the trial court disposed of Ascension Point's motion for sanctions against Taylor's counsel or Taylor's cross-motion for sanctions against Ascension Point. See Crites v. Collins, 284 S.W.3d 839, 841 (Tex. 2009) (concluding defendant's motion for sanctions remained pending after trial court signed order of nonsuit as to plaintiff's claims against defendant); see also Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex. 1995) ("The appellate timetable does not commence to run other than by signed, written order, even when the signing of such an order is purely ministerial.").
We dismiss the appeal for lack of jurisdiction. See TEX. R. APP. P. 42.3(a), 43.2(f).
PER CURIAM Panel consists of Justices Keyes, Brown, and Lloyd.