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Johnson v. Linebarger Goggan Blair & Sampson, LLP

Court of Appeals of Texas, First District

March 30, 2017

GLENN HERBERT JOHNSON, Appellant
v.
LINEBARGER GOGGAN BLAIR & SAMPSON, LLP, EMILY KING WATKINS, AND ANTHONY W. NIMS, Appellees

         On Appeal from the 190th District Court Harris County, Texas Trial Court Case No. 2015-00723

          Panel consists of Chief Justice Radack and Justices Brown and Lloyd.

          MEMORANDUM OPINION

          PER CURIAM

         Appellant, Glenn Herbert Johnson, attempts to appeal from the trial court's interlocutory "Order on the Linebarger Defendants' Plea to the Jurisdiction and Special Exceptions to Plaintiff's Original Petition." Appellees, Linebarger Goggan Blair & Sampson LLP, Emily King Watkins, and Anthony W. Nims (collectively, the "Linebarger Defendants"), have filed a motion to dismiss the appeal. We grant the motion and dismiss the appeal.

         Johnson filed suit against the Linebarger Defendants and others asserting numerous causes of action arising from damage to real property. The Linebarger Defendants filed special exceptions and a plea to the jurisdiction, asserting that "attorney and governmental immunity" barred Johnson's claims against them. On August 17, 2015, the trial court signed an order finding that "the Linebarger Defendants have attorney and government immunity, and therefore [the court] lacks subject-matter over the claims and causes of action filed by [Johnson] against the Linebarger Defendants" (the "August 17 Order"). The trial court dismissed Johnson's claims against the Linebarger Defendants, and ordered that they were "entitled to recover their costs in any final judgment." Johnson then filed a request for findings of fact and conclusions of law and sought rehearing of the August 17 Order. On November 2, 2015, the trial court signed an order denying Johnson's second motion for rehearing of the August 17 Order. On November 6, 2015, Johnson filed his notice of appeal.

         Generally, appellate courts have jurisdiction only over appeals from final judgments. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); Ne. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966). To be final, a judgment must dispose of all issues and parties in a case. Aldridge, 400 S.W.2d at 895. Because the August 17 Order addresses only Johnson's claims against the Linebarger Defendants and does not indicate that the trial court has disposed of all other parties and claims, the order is not a final order. See Ross v. Linebarger, Goggan, Blair & Sampson, L.L.P., 333 S.W.3d 736, 741 (Tex. App.-Houston [1st Dist.] 2010, no pet.) (citing Lehmann, 39 S.W.3d at 206).

         An appellate court, however, has jurisdiction to consider an appeal from an interlocutory order if a statute explicitly provides jurisdiction. Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex. 1998). Section 51.014(a)(8) of the Texas Civil Practice and Remedies Code provides that a person may appeal an interlocutory order that "grants or denies a plea to the jurisdiction by a governmental unit." Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West Supp. 2016). To any extent that the August 17 Order grants the Linebarger Defendants' plea to the jurisdiction based on governmental immunity, the August 17 Order is an appealable interlocutory order.[1]See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8); Ross, 333 S.W.3d at 743- 44.

          An appeal from an interlocutory order is an accelerated appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8); Tex. R App. P. 28.1(b). In an accelerated appeal, absent a motion to extend time under Texas Rule of Appellate Procedure 26.3, the deadline for filing a notice of appeal is twenty days after the order is signed. Tex.R.App.P. 26.1(b); City of Houston v. Estate of Jones, 388 S.W.3d 663, 666 (Tex. 2012); In re K.A.F., 160 S.W.3d 923, 927 (Tex. 2005). If a motion for extension of time to file the notice of appeal is timely filed, the deadline for filing a notice of appeal is extended by fifteen days, to thirty-five days after the order is signed. See Tex. R. App. P. 26.3. Accordingly, Johnson's notice of appeal was due by September 8, 2015, or by September 23, 2015, with a fifteen-day extension. See id. 26.1(b), 26.3; see also id. 4.1(a). Johnson filed his notice of appeal on November 6, 2015.

         We notified Johnson that his appeal was subject to dismissal for want of jurisdiction unless he filed a written response demonstrating how this Court has jurisdiction over this appeal. See Tex. R. App. P. 42.3(a) (allowing involuntary dismissal of case after notice). Johnson filed a response and an amended notice of appeal. He asserts that his notice of appeal was timely because (1) he timely filed a motion for rehearing of the August 17 Order and a request for findings of fact and conclusions of law; (2) the trial court signed an order denying his second motion for rehearing on November 2, 2015; and (3) under Texas Rule of Civil Procedure 306a, the time for filing a notice of appeal began on September 14, 2015, the date that he acquired actual knowledge of the signing of the August 17 Order. The Linebarger Defendants filed a response to Johnson's response and a motion to dismiss contending that Johnson's filing a motion for rehearing and a request for findings of fact and conclusions of law did not extend his deadline to file a notice of appeal, and rule 306a was inapplicable.

         Johnson asserts that, under rule 306a, his time to file his notice of appeal began to run on September 14, 2015, the date he acquired actual knowledge of the August 17 Order, because the trial court clerk failed to notify him of the order as rule 306a required. Rule 306a(3) requires a trial court clerk immediately to notify the parties or their attorneys, by first class mail, of the signing of an appealable order. Tex.R.Civ.P. 306a(3). When more than twenty days have passed between the date that the trial court signs the order and the date that a party receives notice or acquires actual knowledge of the signing, the period for filing a notice of appeal may be extended to the earlier of the date the party received notice or acquired actual knowledge of the signing. Tex.R.App.P. 4.2(a)(1); see Pilot Travel Ctrs., LLC v. McCray, 416 S.W.3d 168, 176 (Tex. App.-Dallas 2013, no pet.) (citing Tex.R.Civ.P. 306a; John v. Marshall Health Servs., Inc., 58 S.W.3d 738, 740 (Tex. 2001)) ("If applicable, [rule 306a] may operate to extend the deadline for filing a notice of appeal of an interlocutory order."). To benefit from this extended time period, Johnson must have proved, in the trial court on sworn motion and notice, the date on which he first received notice or acquired actual knowledge of the August 17 Order and that the date was more than twenty days after the date the order was signed. See Tex. R. Civ. P. 306a(5); Tex.R.App.P. 4.2(a)(1), (b). And, the trial court must have signed a written order finding the date when Johnson first received notice or acquired actual knowledge that the order was signed. See Tex. R. App. P. 4.2(c); Moore Landrey, L.L.P. v. Hirsch & Westheimer, P.C., 126 S.W.3d 536, 540 (Tex. App.- Houston [1st Dist.] 2003, no pet.) (citing Tex. R. App. 4.2(c)); Cantu v. Longoria, 878 S.W.2d 131, 132 (Tex. 1994)). The record filed in this Court does not include the trial court order and finding that rule 4.2(c) requires. Without that finding, the time for filing a notice of appeal of the August 17 Order was not extended. See Nedd-Johnson v. Wells Fargo Bank, N.A., 338 S.W.3d 612, 613 (Tex. App.-Dallas 2010, no pet).

         Johnson also asserts that he timely filed his notice of appeal because he timely filed a motion for rehearing of the August 17 Order and a request for findings of fact and conclusions of law. The time to file a notice of appeal generally is extended to ninety days from the date a judgment is signed if a party timely files a motion for new trial, motion to modify the judgment, or request for findings of fact and conclusions of law. Tex.R.App.P. 26.1(a)(1), (2), (4); see Tex. R. Civ. P. 296, 329b(a), (g). However, the filing of a motion for new trial, motion to modify the judgment, or a request for findings of fact and conclusions of law does not extend the time to file a notice of appeal in an accelerated appeal. Tex.R.App.P. 28.1(b); In re K.A.F., 160 S.W.3d at 927; see Spencer v. Pagliarulo, 448 S.W.3d 605, 606 (Tex. App.-Houston [1st Dist.] 2014, no pet.) (citations omitted). Accordingly, Johnson's filing a motion for rehearing or request for findings of fact and conclusions of law did not extend the time for filing a notice of appeal of the August 17 Order.

         Johnson finally asserts that he timely filed his notice of appeal because the trial court signed the order denying his second motion for oral rehearing on November 2, 2015. The deadline for filing the notice of appeal did not run from the date the trial court signed the order denying his motion for rehearing. See Powell v. Linh Nutrition Programs, Inc., No. 01-03-00919-CV, 2005 WL 375334, at *1 (Tex. App.-Houston [1st Dist.] Feb. 17, 2005, no pet.) (mem. op.) (citing Naaman v. Grider, 126 S.W.3d 73, 74 (Tex. 2003)). Further, the order signed on November 2, 2015, is not a separate appealable order. See Estate of Jones, 388 S.W.3d at 667; City of Houston v. Aster, L.P., 403 S.W.3d 354, 359 (Tex. App.-Houston [1st Dist.] 2013, pet. denied). Neither Johnson's filing a motion for rehearing of the August 17 Order nor the signing of the order overruling a motion for rehearing extended the time to file the notice of appeal of the August 17 Order.

          Johnson's notice of appeal was due to be filed no later than September 8, 2015, or September 23, 2015, with a fifteen-day extension. His notice of appeal filed on November 6, 2015, was untimely. Accordingly, we grant the ...


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