Penny v. Shell Oil Products Co.

363 S.W.3d 694, 2011 Tex. App. LEXIS 5828, 2011 WL 3207781
CourtCourt of Appeals of Texas
DecidedJuly 28, 2011
DocketNo. 01-10-00606-CV
StatusPublished
Cited by14 cases

This text of 363 S.W.3d 694 (Penny v. Shell Oil Products Co.) 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
Penny v. Shell Oil Products Co., 363 S.W.3d 694, 2011 Tex. App. LEXIS 5828, 2011 WL 3207781 (Tex. Ct. App. 2011).

Opinion

OPINION

LAURA CARTER HIGLEY, Justice.

Appellants, Brian and Cynthia Penny, appeal the trial court’s grant of summary judgment in favor of appellees, Shell Oil Products Company, L.L.C., Shell Deer Park, Shell Oil Company, Shell Chemical Company, and Equilon Enterprises, L.L.C. In two issues, appellants challenge the trial court’s rendition of summary judgment in favor of appellees.

We dismiss for lack of jurisdiction.

Background

On December 21, 2006, the Pennys brought premises liabilities claims against Shell Oil Products Company, L.L.C., Shell Deer Park, Shell Oil Company, Shell Chemical Company, and Equilon Enterprises, L.L.C. for injuries sustained by Brian Penny in January 2005. The defendants answered in February 2007. Some time after suit was filed, Helmsman Management Services, Inc. intervened in the suit, asserting rights of subrogation.

In June 2009, all of the defendants except for Shell Deer Park moved for summary judgment on the grounds that there was no evidence of a premises defect. Plaintiffs responded. On September 15, 2009, the trial court granted summary judgment in favor of all of the defendants except for Shell Deer Park on all claims brought by the Pennys against them.

Shell Deer Park moved for summary judgment on December 9, 2009, arguing that it was not a legal entity and there was no evidence that it was the premises owner. Plaintiff responded. On January 20, 2010, the trial court granted summary judgment in favor of Shell Deer Park on all claims brought by the Pennys against it. This order was titled “Final Summary Judgment.”

On February 11, 2010, all of the defendants moved for summary judgment on Helmsman Management Services, Inc.’s claims of subrogation. The trial court granted summary judgment on March 15, 2010. This order was also titled “Final Summary Judgment.”

It is undisputed by the parties that the March 15 order disposed of all issues and parties remaining in the suit at that time.

On March 24, 2010, the defendants filed Defendants’ Motion for Clarification and/or Entry of Final Judgment. In the motion, the defendants asserted,

This Court has granted summary judgment in favor of all Defendants on all of Plaintiffs’ and Intervenor’s claims. Most recently, the Court granted Defendants’ Summary Judgment on Interve-nor’s claims. The order granting this summary judgment (signed on March 15, 2010) disposed of the remaining claims in this lawsuit. Nonetheless, the docket sheet indicates that this summary judgment is interlocutory.

The defendants continued to assert, citing to legal authority, that the March 15 order was a final judgment, disposing of all claims and parties, and that it was incorrect for the court’s docketing system to identify the March 15 order as interlocutory. In their concluding paragraph, defendants stated,

Because all of Plaintiffs’ and Intervener’s claims have been resolved on summary judgment, Defendants respectfully request that this Court clarify the docket sheet to indicate that final judgment has been entered. Alternatively, in accordance with the case law cited above, Defendants request that this Court enter a final judgment in their favor.

[697]*697On April 20, 2010, the trial court entered another order. Like the January 20 and March 15 orders, it was titled “Final Summary Judgment.” The order stated:

After considering Defendants’ Motion for Summary Judgment on all Claims, the response, if any, [and] the arguments of counsel, if any, the court:
GRANTS Defendants!’] Motion for Summary Judgment and ORDERS that judgment be entered in favor of Defendants.
All relief not granted in this judgment is denied.

The Pennys filed a motion for new trial on May 10, 2010, and a notice of appeal on July 20, 2010.

On May 25, 2011, we issued an order requesting briefing on whether we had jurisdiction to consider this appeal. Both appellants and appellees filed briefs on the issue.

Analysis

A notice of appeal must be filed within 30 days after the judgment is signed. Tex.R.App. P. 26.1. If a timely motion for new trial is filed, a notice of appeal must be filed within 90 days after the judgment is signed. Tex.R.App. P. 26.1(a)(1). This Court lacks jurisdiction over an appeal when the notice of appeal is not timely filed. See Tex.R.App. P. 25.1(b); Garza v. Hibernia Nat’l Bank, 227 S.W.3d 233, 233 (Tex.App.-Houston [1st Dist.] 2007, no pet.).

Similarly, the trial court retains plenary power over a case for thirty days after signing a final judgment. Tex.R. Civ. P. 329b(d); Lane Bank Equip. Co. v. Smith S. Equipment, Inc., 10 S.W.3d 308, 310 (Tex.2000). The plenary power of the court can be extended by timely filing an appropriate postjudgment motion, such as a motion for new trial or a motion to modify, correct, or reform the judgment. Lane Bank, 10 S.W.3d at 310. Filing such a motion extends the trial court’s plenary power up to 75 days. M; Tex.R. Crv. P. 329b(c). “During this time, the trial court has plenary power to change its judgment.” Lane Bank, 10 S.W.3d at 310.

Filing a timeline-extending motion outside the court’s plenary power does not revive or extend the court’s plenary power. See Smith v. Comm’n for Lawyer Discipline, 42 S.W.3d 362, 363 (Tex.App.-Houston [14th Dist.] 2001, no pet.) (holding late-filed motion for new trial could not be considered by judge because plenary power had expired). Likewise, a judgment signed by the trial court outside of its plenary power is void and has no effect. Tex.R. Civ. P. 329b(f).

We must determine, then, when the trial court rendered a final judgment and whether the parties timely filed a timeline-extending motion. First, we consider when the trial court rendered a final judgment. “[A] judgment issued without a conventional trial is final for purposes of appeal if and only if either it actually disposes of all claims and parties then before the court, regardless of its language, or it states with unmistakable clarity that it is a final judgment as to all claims and all parties.” Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192-93 (Tex.2001).

It is undisputed by the parties that the March 15 order disposed of all issues and parties remaining in the suit at that time. The March 15 order, then, was a final judgment. See id. at 200 (holding “if a court has dismissed all of the claims in a case but one, an order determining the last claim is final”). The previous orders granting summary judgment merged into the March 15 order. See City of Beaumont v. Guillory, 751 S.W.2d 491, 492 (Tex.1988) (holding partial summary judgment becomes appealable when it merges into final judgment).

[698]*698The next order signed by the trial court was signed on April 20, which was 36 days later.

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Bluebook (online)
363 S.W.3d 694, 2011 Tex. App. LEXIS 5828, 2011 WL 3207781, Counsel Stack Legal Research, https://law.counselstack.com/opinion/penny-v-shell-oil-products-co-texapp-2011.