Marianne Pears Crews v. Rutland Place Apartments and Mary Pair

• Court: Court of Appeals of Texas
• Decided: June 10, 1992
• Docket: 03-91-00532-CV
• Status: Published

Opinion

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN



NO. 3-91-532-CV

MARIANNE PEARS CREWS,

APPELLANT

vs.

RUTLAND PLACE APARTMENTS, ET AL.,

APPELLEES

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT

NO. 387,372, HONORABLE JOSEPH H. HART, JUDGE

PER CURIAM

Appellant Marianne Pears Crews ("Crews") seeks to appeal from an order of dismissal rendered by the district court of Travis County in her suit against appellees Rutland Place Apartments ("Rutland Place") and Mary Pair. We will dismiss the appeal for want of jurisdiction.

In October 1985, Crews filed her original petition naming Rutland Place and Pair as defendants. Shortly thereafter, Rutland Place filed a claim against John W. Crews, as a third-party defendant. See Tex. R. Civ. P. Ann. 38(a) (Supp. 1992). The trial court entertained numerous motions either to dismiss, to retain, or to refer the cause to mediation, culminating in the order of dismissal rendered on August 20, 1991. The dismissal order underlies the appeal before this Court.

The order states that "[p]laintiff's cause of action . . . is hereby dismissed with prejudice" and taxes costs against Crews. The order does not refer to the third-party claim against John W. Crews. The docket sheet does reflect a "Notice of Nonsuit and Dismissal (as to John W. Crews)" dated August 21, 1991; however, neither the transcript nor supplemental transcript filed in this cause includes the notice. ⁽¹⁾ See generally Tex. R. Civ. P. Ann. 162 (Supp. 1992). Based on the record before this Court, we conclude that the order of dismissal, signed August 20, 1991, is not a final, appealable order.

To be final, a judgment must dispose of all issues and parties in a case. North East Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966); Legrand v. Niagara Fire Ins. Co., 743 S.W.2d 241, 242 (Tex. App. 1987, no writ). For purposes of appeal, it is generally presumed that a judgment, not intrinsically interlocutory in character, disposes of all parties and issues legally before the trial court. Aldridge, 400 S.W.2d at 897-98. The rule is subject to an exception, however: "It will not be presumed that a judgment dismissing a plaintiff's suit . . . for want of prosecution . . . also disposed of the issues in an independent cross-action." Id. at 897; Legrand, 743 S.W.2d at 242.

The record here shows that Rutland Place filed a third-party action against John W. Crews. Based on the exception stated in Aldridge, we may not presume that the order dismissing Crews's cause of action against Rutland Place and Pair for want of prosecution disposed of the third-party claim against John W. Crews. Aldridge, 400 S.W.2d at 897-98; Legrand, 743 S.W.2d at 242-43. The judgment, therefore, is not final. With certain exceptions, not applicable here, appellate courts can review only final judgments. Tex. Civ. Prac. & Rem. Code Ann. §§ 51.012, .014 (1986 & Supp. 1992); Hinde v. Hinde, 701 S.W.2d 637, 639 (Tex. 1985); Aldridge, 400 S.W.2d at 895.

Accordingly, the appeal is dismissed for want of jurisdiction.

[Before Chief Justice Carroll, Justices Aboussie and B. A. Smith]

Dismissed for Want of Jurisdiction

Filed: April 1, 1992

[Do Not Publish]

1. ¹  On February 12, 1992, the Clerk of this Court requested that Crews file a supplemental transcript with the notice of dismissal and nonsuit in this Court on or before February 27, 1992. To date, she has not filed such transcript. See Tex. R. App. P. Ann. 50(d) (Pamph. 1992).