Arjana Muhametaj and Rifat Muhametaj v. Larry Burns D/B/A Heritage Partners, LLC

• Court: Court of Appeals of Texas
• Decided: November 29, 2012
• Docket: 10-12-00212-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-12-00212-CV

ARJANA MUHAMETAJ AND RIFAT MUHAMETAJ, Appellants v.

LARRY BURNS D/B/A HERITAGE PARTNERS, LLC, Appellees

From the 40th District Court Ellis County, Texas Trial Court No. 79471

MEMORANDUM OPINION

The relevant procedural history in this appeal is as follows:

 On June 13, 2012, Appellants/Cross-Appellees Arjana Muhametaj and Rifat Muhametaj filed a notice of appeal from the trial court’s interlocutory August 9, 2011 “Order Granting Defendant Derek Howard’s Motion for Summary Judgment” and August 9, 2011 “Order Granting Defendant Dusty Autrey’s Motion for Summary Judgment,” both of which became final upon the trial court’s June 11, 2012 “Final Judgment.”

 On July 9, 2012, Cross-Appellant Larry Burns d/b/a Heritage Partners, LLC, apparently filed a timely motion for new trial.  On August 8, 2012, the trial court reformed the final judgment while it still had plenary jurisdiction over the case. See TEX. R. CIV. P. 329b(e). The judgment is entitled “Final Nunc Pro Tunc Judgment”; however, a judgment nunc pro tunc corrects clerical errors after the trial court has lost plenary power. See Ferguson v. Naylor, 860 S.W.2d 123, 126 (Tex. App.—Amarillo 1993, writ denied).

 On August 17, 2012, Cross-Appellant Larry Burns d/b/a Heritage Partners, LLC, filed a notice of appeal from the trial court’s August 8, 2012 final judgment.

 On September 7, 2012, the trial court signed an “Order Granting New Trial and Alternatively, Judgment Notwithstanding Verdict/Order Disregarding Jury Findings and Memorandum Opinion in Support Thereof.” The order states that its primary purpose is to insure that Cross-Appellant Larry Burns d/b/a Heritage Partners, LLC, receives a new trial.

Because the trial court has granted a motion for new trial as to Larry Burns, the

trial court’s interlocutory summary judgment orders in favor of Derek Howard and

Dusty Autrey are not final. We have no jurisdiction to hear an appeal from a judgment

that is not final, unless there is specific statutory authority permitting an appeal before

final judgment. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.012 (West Supp. 2012).

None of the exceptions to the rule that only final judgments can be appealed applies in

this case. See id. § 51.014 (West Supp. 2012) (listing interlocutory judgments that may be

appealed before final judgment is rendered in the case).

On October 10, 2012, the Clerk of this Court notified Appellants/Cross-Appellees

Arjana Muhametaj and Rifat Muhametaj that their appeal was subject to dismissal for

want of jurisdiction unless, within twenty-one days from the date of the letter, a

response was filed showing grounds for continuing the appeal. No response has been

received from Appellants/Cross-Appellees Arjana Muhametaj and Rifat Muhametaj.

Accordingly, their appeal is dismissed. See TEX. R. APP. P. 42.3(a), (c).

Muhametaj v. Burns Page 2 Furthermore, because the trial court has granted a motion for new trial as to

Larry Burns, it appears that the cross-appeal of Cross-Appellant Larry Burns d/b/a

Heritage Partners, LLC, is moot. On October 10, 2012, the Clerk of the Court notified

Cross-Appellant Larry Burns d/b/a Heritage Partners, LLC, that his appeal was subject

to dismissal as moot unless, within twenty-one days from the date of the letter, a

response was filed showing grounds for continuing the appeal. No response has been

received from Cross-Appellant Larry Burns d/b/a Heritage Partners, LLC.

Accordingly, his appeal is also dismissed.

REX D. DAVIS Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Appeal dismissed Opinion delivered and filed November 29, 2012 [CV06]

Muhametaj v. Burns Page 3