Opinion
No. 08-14-00060-CV
04-22-2014
TERRENCE DANIELS, Appellant, v. BARBARA BROWDER, Appellee.
Appeal from the
243 District Court
of El Paso County, Texas
(TC# 2012-DCV-06543)
ORDER
Pending before the Court is a motion filed by Appellee, Barbara Browder, to dismiss the above-styled and numbered appeal for want of jurisdiction. Appellant, Terrence L. Daniels, acting pro se, sued numerous defendants. Most if not all of the defendants filed special appearances and/or motions to dismiss and the trial court entered numerous separate orders dismissing the claims against these defendants. The claims against Browder and another defendant, Oscar Ferralez, were the only claims which remained pending in December 2013.
On December 5, 2013, the trial court conducted a hearing on Ferralez's special appearance and Browder's motion to dismiss. During that hearing, the court orally granted Ferralez's special appearance and Browder's motion to dismiss. On December 6, 2013, the trial court entered a written order granting Ferralez's special appearance. Additionally, on that same date, the court entered an order dismissing Appellant's amended petition in its entirety but it did not specifically reference or grant Browder's motion to dismiss. Appellant timely filed a motion for new trial on January 2, 2014, thereby extending the time for filing his notice of appeal until March 6, 2014. See TEX.R.APP.P. 26.1. On January 8, 2014, the trial court entered a written order granting Browder's motion to dismiss. That order was approved by Browder's attorney. Appellant filed his notice of appeal on February 7, 2014 and specifically identified the order entered on January 8, 2014 as the final judgment.
Browder asserts that we lack jurisdiction of the appeal because Appellant's notice of appeal did not expressly state he was appealing the "final judgment" entered on December 6, 2013. A judgment or order is final for purposes of appeal if it actually disposes of all pending parties and claims before the court. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). As noted by Browder, the trial court's order entered on December 6, 2013 is the final judgment because it purported to dispose of all claims and parties even though the trial court had not entered a separate written order granting Browder's motion to dismiss and the December 6, 2013 order did not expressly grant Browder's motion to dismiss the claims against her.
Rule 25.1(b) of the Texas Rules of Appellate Procedure provides: "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 order appealed from. Any party's failure to take any other step required by these rules, including the failure of another party to perfect an appeal under (c), does not deprive the appellate court of jurisdiction but is ground only for the appellate court to act appropriately, including dismissing the appeal." Rule 25.1(c) specifies the contents of the notice of appeal and requires that the notice, among other things, identify the trial court, state the cause number, and state the date of the judgment or order appealed from. TEX.R.APP.P. 25.1(d)(2).
Appellant mistakenly, and perhaps understandably, identified the January 8, 2014 order as the final judgment in his notice of appeal. Pursuant to Rule 25.1(b), the timely notice of appeal filed by Appellant is sufficient to invoke this Court's jurisdiction over the parties to the final judgment entered by the trial court, but the notice of appeal is defective because it misidentified the date on which the final judgment was entered. Pursuant to Rule 25.1(b), the error does not deprive the Court of jurisdiction over the appeal and we will construe the notice of appeal as giving notice of Appellant's intent to appeal from the final judgment entered by the trial court. Accordingly, Browder's motion to dismiss is DENIED.
IT IS SO ORDERED this 22 day of April, 2014.
PER CURIAM
Before McClure, C.J., Rivera and Rodriguez, JJ.