Johnathan Cooper v. James Warren St. John

• Court: Court of Appeals of Texas
• Decided: June 13, 2024
• Docket: 02-24-00187-CV
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-24-00187-CV ___________________________

JOHNATHAN COOPER, Appellant

V.

JAMES WARREN ST. JOHN, Appellee

On Appeal from the 67th District Court Tarrant County, Texas Trial Court No. 067-330985-21

Before Sudderth, C.J.; Kerr and Walker, JJ. Memorandum Opinion by Justice Walker MEMORANDUM OPINION

Appellant Johnathan Cooper filed his “Plaintiff Premature Notice of Appeal”

with this court. In his notice, Cooper states that he filed his notice pursuant to Texas

Rule of Appellate Procedure 27.1 “in [an] abundance of caution due to incarceration,

no email, or access to receive up[-]to[-]date rulings by this court.” He prays that we

act upon his notice “only on a detr[i]mental final or appealable order” against him.

However, Cooper did not provide us with an appealable order.1

Accordingly, we informed Cooper of our concern that we lacked jurisdiction

over this appeal. We requested the parties to, within twenty days, provide us with a

copy of an appealable order and warned that the appeal would be dismissed for want

of jurisdiction if no such order was furnished. Cooper responded to our letter and

explained again that he had filed his premature notice of appeal “in [an] abundance of

caution” so that he does not lose his right to appeal any future detrimental rulings

against him. Cooper is apparently incarcerated and has concerns that there might be a

delay in mailing and processing his notice of appeal if he waits until an appealable

1 While this appeal was pending, the trial court clerk provided us with an “Interlocutory Order Granting In Part and Denying In Part Defendant’s No Evidence and Traditional Motions For Summary Judgment.” In that order, the trial court partially granted summary judgment for Appellee James Warren St. John on certain of Cooper’s claims, but explicitly denied his motion for summary judgment as to Cooper’s pending contract claim. Thus, this order is not final and appealable nor is it an appealable interlocutory order. See Matter of Marriage of Davis & Luo, No. 07-23- 00396-CV, 2023 WL 8470633, at *1 (Tex. App.—Amarillo Dec. 6, 2023, no pet.) (mem. op.).

2 order is eventually rendered against him. He reiterated that his premature notice of

appeal “should only be in effect upon any final or appealable judgment against” him.

Rule 27.1 provides, in civil cases, that “a prematurely filed notice of appeal is

effective and deemed filed on the day of, but after, the event that begins the period

for perfecting the appeal.” Tex. R. App. P. 27.1(a). However, this rule “does not

contemplate an appellate place holder until there is a final appealable judgment.”

Ganeson v. Reeves, 236 S.W.3d 816, 817 (Tex. App.—Waco 2007, pet. denied).

Rule 27.1 does not serve to require an appellate court to “docket and hold an appeal

open until there is an appealable judgment or order at some future date.” Id.; see Burns

v. Burns, No. 12-22-00051-CV, 2022 WL 1483623, at *1 (Tex. App.—Tyler May 11,

2022, no pet.) (mem. op.).

Cooper concedes that there is no appealable judgment or order in this case and

instead asks us to use his premature notice of appeal as an indefinite place holder in

the event that such a judgment or order is eventually signed. But without a final

judgment or appealable order, we have no jurisdiction over his appeal. See Burns,

2022 WL 1483623, at *2. Thus, we dismiss this appeal for want of jurisdiction. See

Tex. R. App. P. 42.3(a), 43.2(f).

/s/ Brian Walker

Brian Walker Justice

Delivered: June 13, 2024