Appeal from the 161st District Court Ector County, Texas
Trial Court Cause No. B-140432
consists of: Wright, C.J., Willson, J., and Bailey, J.
January 30, 2017, Yvonne de Bivar Branco filed a notice of
appeal from the trial court's refusal to entertain a
motion for final judgment. In her notice of appeal, Yvonne
also indicated that she wished to prematurely appeal the
summary judgment signed on November 22, 2016, in favor of
Jose Francisco de Bivar Branco. We dismiss the appeal for
want of jurisdiction. See Tex. R. App. P. 42.3(a).
docketing this appeal, the clerk of this court wrote the
parties and informed them that the notice of appeal appeared
to be untimely as the trial court had signed the orders in
which it granted summary judgment and nonsuit on November 22,
2016. We requested that Appellant respond and show grounds to
continue the appeal.
filed a response in which she urges that the notice of appeal
was timely with respect to the trial court's refusal to
entertain her postjudgment motions and that the trial
court's November 22 orders did not dispose of all claims
and were not final and appealable. We disagree.
summary judgment 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." Lehmann v. Har-Con Corp., 39 S.W.3d
191, 192 (Tex. 2001). Although the order granting partial
summary judgment was not itself a final judgment and
contained no language to indicate that it was intended to be
a final judgment, it disposed of all of Appellant's
claims. The trial court ruled that Appellant shall "take
nothing" against Appellee "on all causes of action
associated with her petition to Domesticate Foreign Judgment
and all amended petitions seeking to enforce the March 26,
1991, judgment for debt granted by summary judgment in South
remaining claims, those filed by Appellee against Appellant,
were disposed of by nonsuit. On November 10, 2016, Appellee
filed a motion for nonsuit as to "all
counter-claims" against Appellant, including
Appellee's request for attorney's fees as sanctions
and costs of litigation. On November 22, the trial court
entered an order by which it granted Appellee's motion
for nonsuit. We conclude that the partial summary judgment in
combination with the nonsuit actually disposed of all parties
and all claims and, together, constituted a final and
appealable judgment. See H. B. Zachry Co. v.
Thibodeaux, 364 S.W.2d 192, 193 (Tex. 1963) (one final
judgment existed because interlocutory order that disposed of
one defendant became final when a subsequent order dismissed
the trial court's refusal to entertain a postjudgment
motion is not itself appealable. See Guajardo v.
Conwell, 46 S.W.3d 862, 863-64 (Tex. 2001) (determining
that trial court's dismissal of postjudgment motion was
not an appealable order). Appellant's argument is based
on her contention that the trial court had a ministerial duty
to enforce the domesticated foreign judgment, which she
asserts was final and no longer subject to challenge.
Regardless, the trial court's refusal to act on
Appellant's motions does not constitute an appealable
judgment. We hold that the time period for Appellant to
perfect an appeal or file a motion for new trial began to run
on November 22, 2016.
clerk's record reflects that Appellant did not file a
motion for new trial but that she did file two postjudgment
motions on January 17, 2017, fifty-six days after the date
that the trial court signed the order granting partial
summary judgment and the order granting nonsuit. Thus, even
if either of Appellant's postjudgment motions could be
considered a motion for new trial, neither was filed within
the thirty-day time limit. See Tex. R. Civ. P.
329b(a). Absent a timely filed motion for new trial, the
notice of appeal was due to be filed on December 22, 2016,
thirty days after the judgment was signed or, at the very
latest, January 6, 2017, with a fifteen-day extension.
See Tex. R. App. P. 26.1, 26.3. However, Appellant
did not file a notice of appeal until January 30, 2017. Her
notice of appeal was, therefore, untimely. Absent a timely
notice of appeal, this court is without jurisdiction to
consider this appeal. See Wilkins v. Methodist Health
Care Sys., 160 S.W.3d 559, 564 (Tex. 2005); Garza v.
Hibernia Nat'l Bank, 227 S.W.3d 233 (Tex. App.-
Houston [1st Dist.] 2007, no pet.); see also Verburgt v.
Dorner, 959 S.W.2d 615, 617 (Tex. 1997).
the trial court's refusal to entertain Appellant's
postjudgment motions is not itself appealable and because
Appellant did not timely file a notice of appeal based upon
the November 22 final-judgment date, we have no jurisdiction
to entertain this appeal.
we dismiss this appeal for want of jurisdiction. See