Cletus Graves, Wiley Kimbell, Dwain Woody, Douglas Corley and the Underwriters Group, Inc., a Florida Coporation v. Galloway, Johnson, Tompkins, Burr & Smith, a Professional Law Corporation

Opinion

Dismissed and Memorandum Opinion filed August 6, 2009

Dismissed and Memorandum Opinion filed August 6, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-09-00511-CV

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CLETUS GRAVES, WILEY KIMBELL, DWAIN WOOD, DOUGLAS CORLEY, and THE UNDERWRITERS GROUP, INC. a FLORIDA CORPORATION, Appellants

V.

GALLOWAY, JOHNSON, THOMPKINS, BURR & SMITH, a Professional Corporation Appellee

On Appeal from the 80th District Court

Harris County, Texas

Trial Court Cause No. 2007-43909

M E M O R A N D U M   O P I N I O N

This is an attempted appeal from a summary judgment signed December 10, 2008.  No motion for new trial was filed.  Appellants= notice of appeal was not filed until June 3, 2009.  We dismiss the appeal for want of jurisdiction.

In granting appellee=s motion for summary judgment, the trial judge, the Honorable Lynn Bradshaw-Hull, modified the judgment, adding AInterlocutory and Partial@ to the order=s title, and also adding Ainterlocutory@ to the description of Defendants= Motion for Summary Judgment.^[1]  The order further stated that summary judgment Aagainst all Plaintiffs is GRANTED.  Plaintiffs shall take nothing from Defendant, Galloway, Johnson, Tompkins, Burr & Smith, A Professional Law Corporation, who stands fully discharged and acquitted.@  The law firm was the only defendant. 

Months later, after a new judge of the trial court had assumed office, a docket control order containing a trial setting was sent to the parties.  Appellee filed a motion to dismiss, subject to its position that the trial court lacked jurisdiction.  Appellee asserted that the December 10, 2008, summary judgment order was final, despite the addition of the words Ainterlocutory@ and Apartial.@  The new trial judge, the Honorable Larry Weiman, agreed, and on May 8, 2009, he signed an order that the December order Ais and was a final judgment as of December 10, 2008.@  Appellants then filed their notice of appeal.

An appellant=s notice of appeal must be filed within thirty days after the judgment is signed when appellant has not filed a timely motion for new trial, motion to modify the judgment, motion to reinstate, or request for findings of fact and conclusion of law.  See Tex. R. App. P. 26.1.

Appellants= notice of appeal was not filed timely.  A motion for extension of time is necessarily implied when an appellant, acting in good faith, files a notice of appeal beyond the time allowed by rule 26.1, but within the fifteen-day grace period provided by rule 26.3 for filing a motion for extension of time.  See Verburgt v. Dorner, 959 S.W.2d 615, 617-18 (Tex. 1997) (construing the predecessor to rule 26).  Appellants=  notice of appeal was not filed within the fifteen-day period provided by rule 26.3.  See Tex. R. App. P. 26.3.

.On July 10, 2009, notification was transmitted to all parties of the court=s intention to dismiss the appeal for want of jurisdiction.  See Tex. R. App. P. 42.3(a).  The parties filed responses to the notice.  Appellants = response fails to demonstrate that this court has jurisdiction over the appeal.

Appellants argue that because the trial judge modified the summary judgment order to include the words Ainterlocutory@ and Apartial,@ the order was interlocutory.  Appellants have not identified a genuine issue that was not resolved by the summary judgment, however.^[2] 

The leading case on summary judgment finality is Lehmanm v. Har-Con Corp., 38 S.W.3d 191 (Tex. 2001).  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.  Id. at 205 (emphasis supplied).  Language that the plaintiff take nothing by his claims shows finality if there are no other claims by other parties.  Id.  When an order is unclear, Lehmann requires  the appellate court to look to the record in the case to determine whether the order disposes of all pending claims and parties.^[3]  Id. at 205-06.  After our review of the record, it is clear that all claims were disposed of when the firm=s motion for summary judgment was granted, and the Lehmann test is satisfied.  Lehmann recognized that the situation presented here may occur: 

[A]n 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. Thus, an order that grants a motion for partial summary judgment is final if in fact it disposes of the only remaining issue and party in the case, even if the order does not say that it is final, indeed, even if it says it is not final.

Id. at 204.

We hold that the December 10, 2008, summary judgment order is final.  Appellants= notice of appeal is therefore untimely, and we lack jurisdiction. 

Accordingly, the appeal is ordered dismissed.

PER CURIAM

Panel consists of Chief Justice Hedges and Justices Yates and Frost.

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^[1]  The firm=s motion was titled ADefendant=s Motion for Summary Judgment Against All Plaintiffs.@  Appellants had also filed motions for partial summary judgment that were denied in the same order.

^[2]  We reject appellants= theory that the original trial judge may have considered the judgment interlocutory because a cause of action for negligent misrepresentation was arguably raised by the facts alleged in the petition, but not pleaded and addressed in the summary judgment motion or response.  We also reject appellants= contention that typographical errors in the judgment=s disposition of costs rendered the judgment interlocutory.

^[3]  If the appellate court is uncertain about the intent of the order, it can abate the appeal to permit clarification by the trial court.  Lehmann, 38 S.W.3d at 206.  Here, the trial court has already ruled that the December 10, 2008, order is final, and abatement would serve no purpose.