Guajardo v. Conwell

30 S.W.3d 15, 2000 Tex. App. LEXIS 4147, 2000 WL 796059
CourtCourt of Appeals of Texas
DecidedJune 22, 2000
DocketNo. 14-99-01403-CV
StatusPublished
Cited by3 cases

This text of 30 S.W.3d 15 (Guajardo v. Conwell) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Guajardo v. Conwell, 30 S.W.3d 15, 2000 Tex. App. LEXIS 4147, 2000 WL 796059 (Tex. Ct. App. 2000).

Opinion

OPINION

PER CURIAM.

This is an appeal from a summary judgment. On April 14, 2000, appellee, Wayne Paris, filed a motion to dismiss the appeal for want of jurisdiction. Four days later, appellees, Tracey D. Conwell and Creole Construction Company, Inc., filed a motion to dismiss the appeal on two grounds, including that the appeal was untimely filed.

In her notice of appeal, appellant, Clarissa Guajardo, stated that the judgment appealed from was an order, dated October 15, 1999, “dismissing] for want of prosecution” and “[was] the last-given order appealed from and was the first order disposing of all parties and issues in this case.” This notice of appeal was filed November 11, 1999.

The alleged order of dismissal for want of prosecution consists of four sentences:

The court signed a final judgment in the case on July 9,1999. No motion for new trial was filed. The trial court’s plenary jurisdiction expired August 9, 1999. Accordingly, the court dismisses the parties’ post-judgment motions for want of jurisdiction.

The judgment signed on July 9, 1999, is an order granting the summary judgment motion of appellees, Conwell and Creole Construction Company, Inc. In that order, the trial court includes Mother Hubbard language, ordering that “all relief herein not expressly granted is denied.” In Mafrige v. Ross, 866 S.W.2d 590, 592 (Tex.1993), the supreme court held that Mother Hubbard language, or its equivalent, makes an otherwise partial summary judgment final for purpose of appeal.

In a case with similar facts, the supreme court held that, when a summary judgment order contains language of finality, such as Mother Hubbard language, the nonmovant waives his right to appeal unless (1) he asks the trial court to correct the summary judgment while the court retains plenary power, or (2) he perfects a timely appeal of the summary judgment. See Inglish v. Union State Bank, 945 S.W.2d 810, 811 (Tex.1997). Because the appellant in Inglish did neither of these, the court held that the intermediate appellate court had erred in determining it had jurisdiction to reach the merits of the appeal. See id.

Inglish is dispositive in this case. The summary judgment contained language purporting to make the judgment final because it contained Mother Hubbard language. Accordingly, to avoid waiver, appellant was required either to ask the trial court to correct the July 9, 1999, order while the trial court retained plenary power or to perfect a timely appeal from the July 9, 1999, order. No motion for new trial was timely filed.

Appellant did, however, file a motion to enforce the judgment and for sanctions. A motion to enforce the judgment is not a motion that will extend the appellate deadlines, but the supreme court has held that a motion for sanctions may extend appellate timetables. See Lane Bank Equip. Co. v. Smith Southern Equip., Inc., 10 S.W.3d 308 (Tex.2000).

In Lane, the supreme court held that a post judgment motion for sanctions under Rule 13 sought a substantive change to the former judgment and extended appellate timetables. See id. at 313. In the instant case, however, appellant sought sanctions for appellees’ refusal to comply with the judgment. We find this distinguishable from the type of sanctions motion the supreme court holds extends appellate deadlines. Because the motion filed by appellant did not seek to alter the judgment, but instead sought sanctions for the failure to comply with the judgment, appellant’s motion for sanctions did not extend appellate deadlines. Even if we were to find that this motion extended appellate deadlines, it would not assist ap[17]*17pellant in this case. If appellant had filed a motion that extends appellate deadlines, the deadline for filing a timely notice of appeal would have been October 7, 1999. No motion for extension of time was filed within 15 days of October 7, 1999. Appellant filed her notice of appeal on November 11,1999.

On April 24, 2000, the court notified appellant that we were considering appel-lees’ motions to dismiss and the assessment of sanctions on the court’s own motion. In her response, appellant presents no basis for finding that this court has jurisdiction. Appellant states that the threshold issue in this appeal turns on a matter now being considered by the supreme court in Lehmann, et al. v. Har-Con Corp., 988 S.W.2d 415 (Tex.App.— Houston [14th Dist.] 1999, pet. granted). Accordingly, appellant asks that we abate until the supreme court decides the Leh-mann case.

In Lehmann, a panel of this Court held that a summary judgment that did not dispose of all parties and claims, but contained a Mother Hubbard clause, was final and appealable, and therefore, appellant’s notice of appeal was untimely. See id. at 415. The supreme court granted appellant’s petition for review, but has not yet ruled. Because we cannot predict the outcome of that appeal or when the opinion will issue, we decline to delay our decision in this matter.

Furthermore, we believe our decision is Lehmann is consistent with supreme court precedent. In Bandera Elec. Co-op., Inc. v. Gilchrist, 946 S.W.2d 386 (Tex.1997), the supreme court reiterated its holding in Mafrige:

In Mafrige, this Court concluded that the inclusion of Mother Hubbard language or its equivalent in an order granting summary judgment makes an otherwise partial summary judgment final for appellate purposes. While we recognized that a summary judgment order that does not dispose of all issues and all parties is generally interlocutory and not appealable in the absence of a severance, we held that a summary judgment order with Mother Hubbard language should be treated as final for purposes of appeal.

Gilchrist, 946 S.W.2d at 337 (citations omitted). Although the Gilchrist case involved a motion for summary judgment that did not seek adjudication on all claims, rather than a party as is involved in the instant case, we find the supreme court’s language quoted above to pronounce a broadly applicable rule, not limited to the facts in that case.

Other courts of appeals have applied this rule in cases. where the summary judgment motion did not seek judgment as to all parties. See John v. Marshall Health Serv., Inc., 12 S.W.3d 888 (Tex.App.—Texarkana 2000, no pet.); Kaigler v. General Elec. Mortgage Ins. Corp., 961 S.W.2d 273 (TexApp.—Houston [1st Dist.] 1997, no pet.).1 For example, in Kaigler, the plaintiff moved for summary judgment against one of two defendants. See 961 S.W.2d at 274. The motion did not seek to adjudi[18]*18cate the plaintiffs claims against the other defendant, or this defendant’s counterclaims and cross-claim. See id. The trial court entered an order granting the motion and included a Mother Hubbard clause. See id.

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30 S.W.3d 15, 2000 Tex. App. LEXIS 4147, 2000 WL 796059, Counsel Stack Legal Research, https://law.counselstack.com/opinion/guajardo-v-conwell-texapp-2000.