Opinion
No. 10-06-00275-CV
Opinion delivered and filed November 1, 2006.
Appeal from the 278th District Court, Walker County, Texas, Trial Court No. 0221785-C.
Appeal dismissed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
MEMORANDUM OPINION
Laura Myers seeks to appeal a summary judgment signed by the trial court on April 7, 2006, 153 days before Myers filed her notice of appeal. Because the notice of appeal appeared untimely, the Clerk of this Court notified the parties that the appeal would be dismissed for want of jurisdiction if a response showing grounds for continuing the appeal was not filed. Sam Houston State University responded with a motion to dismiss for this very reason. Myers filed a response in which she contends that the summary judgment was interlocutory and did not become final until the trial court signed an order denying her motion to reconsider the summary judgment and stating the trial court's opinion that the April 7 judgment was a final judgment. Because we agree with the trial court's interpretation of the April 7 judgment, we will dismiss the appeal for want of jurisdiction.
Sam Houston State filed a summary judgment motion on March 10 contending that it was entitled to judgment as a matter of law on Myers's then-pending claims for gender or pregnancy discrimination, retaliation, and creation of a hostile work environment. Myers filed an amended petition on March 20 adding claims for pay discrimination. Sam Houston State did not amend its summary judgment motion to address Myers's pay discrimination claims.
The trial court had previously granted summary judgment motions filed by Sam Houston State employees whom Myers had also named as defendants. Thus, Sam Houston State was the only remaining defendant when it filed its own summary judgment motion.
On April 7, the trial court signed its order granting the summary judgment motion. The order states:
On the 7th day of April, 2006, the Motion for Summary Judgment filed in this cause by Sam Houston State University, Defendant, herein, was submitted to the Court. The Court, after examining the pleadings and summary judgment evidence and hearing the arguments of counsel, is of the opinion and finds that the Motion for Summary Judgment of Defendant Sam Houston State University should be granted.
IT IS, THEREFORE, ORDERED ADJUDGED, and DECREED that Plaintiff Laura Myers take nothing against Defendant Sam Houston State University and that said Defendant recover all cost[s] on his behalf expended of and from Plaintiff, for which let execution issue.
If this is a "final judgment," then Myers's appeal is untimely.
In Lehmann v. Har-Con Corp., the Supreme Court overruled prior decisions which held that the inclusion of a Mother Hubbard clause in an otherwise interlocutory judgment renders that judgment final and appealable. 39 S.W.3d 191, 203-04 (Tex. 2001). The Court observed in the next paragraph, however, that "an order can be a final judgment for appeal purposes even though it does not purport to be if it actually disposes of all claims still pending in the case." Id. at 204. "Language that the plaintiff take nothing by his claims in the case, or that the case is dismissed, shows finality if there are no other claims by other parties." Id. at 205.
Here, the April 7 judgment decrees that "Myers take nothing against Defendant Sam Houston State University and that said Defendant recover all cost[s]" from Myers. According to the Supreme Court, this is a final judgment for purposes of appeal. Ritzell v. Espeche, 87 S.W.3d 536, 538 (Tex. 2002) (per curiam).
Because Myers filed a motion to reconsider the April 7 judgment within thirty days after that judgment, her notice of appeal was due on or before July 6. Because she did not file a notice of appeal until September 7, her notice is untimely. Therefore, we grant Sam Houston State's motion and dismiss this appeal for want of jurisdiction. See Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 564 (Tex. 2005).