Summary
dismissing for want of jurisdiction appeal from summary judgment motion where attorney's fees claim remained pending and declining to abate under Rule 27.1
Summary of this case from Driver v. Callender Lake Prop. Owners Improvement Assoc.Opinion
12-22-00051-CV
05-11-2022
ERIC DEWAYNE BURNS, APPELLANT v. FAIRY JEAN BURNS, APPELLEE
Appeal from the County Court at Law No. 2 of Smith County, Texas (Tr. Ct. No. 73576-A)
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
MEMORANDUM OPINION
PER CURIAM
Eric Dewayne Burns, acting pro se, filed a notice of appeal from an order granting a traditional summary judgment motion filed by Fairy Jean Burns, Appellee. Fairy Jean filed a motion to abate on grounds that the notice of appeal was prematurely filed. Eric subsequently filed a motion to abate in which he incorporated by reference Fairy Jean's motion.
When "there has not been a conventional trial on the merits, an order or judgment is not final for purposes of appeal unless it actually disposes of every pending claim and party or unless it clearly and unequivocally states that it finally disposes of all claims and all parties." Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001). A summary judgment is presumed to dispose of only those issues expressly presented. City of Beaumont v. Guillory, 751 S.W.2d 491, 492 (Tex. 1988) (per curiam). "A summary judgment that fails to dispose expressly of all parties and issues in the pending suit is interlocutory and not appealable unless a severance of that phase of the case is ordered by the trial court[.]" Id. Absent an order of severance, the "party against whom an interlocutory summary judgment has been rendered has his right of appeal when and not before such partial summary judgment is merged in a final judgment disposing of all parties and issues." Id.
In its order granting summary judgment, the trial court found no genuine issue of material fact as to the affirmative defense of statute of limitations to render untimely all relief sought by Eric. The trial court ordered that Eric take nothing from Fairy Jean but that Fairy Jean's request for attorney's fees be set for a hearing. The order further states that it does not dispose of all parties and claims and is not appealable. Because the order does not dispose of Fairy Jean's claim for attorney's fees, it is not a final judgment. See Farm Bureau Cty. Mut. Ins. Co. v. Rogers, 455 S.W.3d 161, 164 (Tex. 2015) (per curiam); see also Homeward Residential, Inc. v. Burch, No. 02-19-00413-CV, 2020 WL 370578, at *2 (Tex. App.-Fort Worth Jan. 23, 2020, pet. denied) (mem. op.).
This order vacated and replaced a previous final judgment, after Fairy Jean filed a motion to modify the judgment, in which she urged that the order should be interlocutory and she intended to file another motion for summary judgment as to subsequent claims.
The parties both take the position that Eric's notice of appeal is prematurely filed and the appeal should be abated. "In a civil case, a prematurely filed notice of appeal is effective and deemed filed on the day of, but after, the event that begins the period for perfecting the appeal." Tex.R.App.P. 27.1(a). This Rule "does not contemplate an appellate place holder until there is a final appealable judgment." Ganeson v. Reeves, 236 S.W.3d 816, 817 (Tex. App.-Waco 2007, pet. denied). Rather, the Rule is "designed to make it clear that a notice of appeal filed before the final appealable judgment is rendered is nevertheless effective to invoke our appellate jurisdiction of such a judgment." Id. Rule 27.1 simply does not require an appellate court to "docket and hold an appeal open until there is an appealable judgment or order at some future date." Id.; Dias v. Dias, No. 13-11-00756-CV, 2012 WL 171913, at *2 (Tex. App.-Corpus Christi Jan. 19, 2012, no pet.) (mem. op.) (per curiam).
Again, Fairy Jean's attorney's fee claim remains pending and this Court is unaware of when that claim may be disposed. Additionally, Eric asserts in his motion to abate that there is a need for a "full investigation" into issues of fraud and forgery, and indicates that he has filed a motion to recuse the trial judge. And Fairy Jean has indicated an intent to file yet another summary judgment motion. Thus, the record demonstrates this is not a case in which the trial court made a final ruling but has yet to sign a final, appealable order or judgment. Nothing in Rule 27.1 indicates, and the "clear implication is to the contrary, that a notice of appeal can be filed in anticipation of an appeal that may be somewhere in the indefinite future." Ganeson, 236 S.W.3d at 817. A final judgment must still be rendered for this Court to have jurisdiction. Johnson v. Tex. Serenity Acad., Inc., No. 01-17-00656-CV, 2018 WL 1056418, at *1 (Tex. App.-Houston [1st Dist.] Feb. 27, 2018, no pet.) (mem. op.) (per curiam). Because there is no final judgment or appealable interlocutory order from which Eric may appeal, we dismiss the appeal for want of jurisdiction. See id. (declining to retain appeal as premature under Rule 27.1(a) and dismissing for want of jurisdiction); see also Tate v. Dean, No. 01-17-00036-CV, 2017 WL 1326098, at *1-2 (Tex. App.-Houston [1st Dist.] Apr. 11, 2017, no pet.) (mem. op.) (same); Dias, 2012 WL 171913, at *2; Ganeson, 236 S.W.3d at 817. All pending motions are overruled as moot.
We also note that the record indicates the trial court approved Eric's statement of inability to afford payment of court costs. That statement of inability to afford payment of court costs was filed with this Court, and Eric did not pay an appellate filing fee.
JUDGMENT
THIS CAUSE came on to be heard on the appellate record, and the same being considered, it is the opinion of this Court that it is without jurisdiction of the appeal, and that the appeal should be dismissed.
It is therefore ORDERED, ADJUDGED and DECREED by this Court that this appeal be, and the same is, hereby dismissed for want of jurisdiction; and that this decision be certified to the court below for observance.