Diane v. Wade v. David's Landscaping and David's Landscaping, Inc.

• Court: Court of Appeals of Texas
• Decided: June 11, 2015
• Docket: 07-15-00155-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-15-00155-CV

DIANE V. WADE, APPELLANT

V.

DAVID'S LANDSCAPING AND DAVID'S LANDSCAPING, INC., APPELLEES

On Appeal from the 419th District Court Travis County, Texas Trial Court No. D-1-GN-13-004070, Honorable Amy Clark Meachum, Presiding

June 11, 2015

ORDER

NOTICE OF INTENT TO DISMISS FOR WANT OF JURISDICTION

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Appellant Diane V. Wade filed notice of appeal from a judgment “signed on or

after December 18, 2014,” granted on the no-evidence summary judgment motion of

appellees David’s Landscaping and David’s Landscaping, Inc. The appeal was

transferred from the Third Court of Appeals to this Court, by order signed March 24,

2015 by the Supreme Court of Texas in its Misc. Docket No. 15-9054. Subsequently, counsel for Wade filed a letter informing us that a final judgment

had not been signed in the case. We now have received a supplemental clerk’s record

containing the trial court’s letter dated December 18, 2014, informing counsel of the

granting of the defendants’ motion for summary judgment, and requesting that Robert A.

House, counsel for the defendants, prepare an order reflecting the court’s ruling. No

final judgment appears in either the original or the supplemental clerk’s record. See

Perdue v. Patten Corp., 142 S.W.3d 596, 603 (Tex. App.—Austin 2004, no pet.) (letter

purporting to grant motion for new trial and filed with court clerk was not an “operative

order” because it also directed counsel to prepare an order).

As a general rule, an appeal may be taken only from a final judgment. Lehmann

v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). To be final, a judgment must

dispose of all issues and parties in the case. Id. at 205. A premature notice of appeal

may be given effect under Rule of Appellate Procedure 27.1(a). See TEX. R. APP. P.

27.1(a).

Like other courts of appeals, we are willing to wait a reasonable time for the trial

court to sign a final judgment when a premature notice of appeal has invoked our

jurisdiction. See Rowe v. Watkins, No. 08-09-00001-CV, 2009 Tex. App. LEXIS 6703,

*4 (Tex. App.—El Paso August 26, 2009, no pet.) (mem. op.); Cook v. Lernout &

Hauspie Med. Servs. Div., 68 S.W.3d 285 (Tex. App.—Waco 2002, no pet.) (both

stating similar willingness).1 But if a supplemental record containing a final judgment is

1 Lernout & Hauspie also involved a case transferred from one court of appeals to another. 68 S.W.3d at 286. The court there noted that the Supreme Court’s transfer orders typically provide that a case is “filed” in a court of appeals when it receives the notice of appeal. The court further noted under that typical wording, the transferee court is put in the same position as the transferring court when a notice of appeal has been prematurely filed. Id. (citing Health Care Centers of Texas, Inc. v. Nolen, 62

2 not filed with the clerk of this Court on or before July 23, 2015, we will dismiss this

appeal for want of jurisdiction. TEX. R. APP. P. 42.3; Lehmann, 39 S.W.3d at 195.

Per Curiam

______________________ S.W.3d 813, 815 (Tex.App.—Waco, 2001, no pet.). Such is the case here. The Supreme Court’s March 24, 2015 transfer order contains the typical language. Wade’s notice of appeal was filed in the Third Court on March 18, 2015. The transfer order directed the transfer from the Third Court to the Seventh Court of certain cases filed in the Third Court on or after March 2, 2015. That the notice of appeal was prematurely filed does not affect the validity of the transfer or this Court’s jurisdiction over the appeal. See TEX. GOV’T CODE ANN.§ 73.002 (West 2013) (jurisdiction of transferred case).