Court of Appeals of Texas, Third District, Austin
THE DISTRICT COURT OF TRAVIS COUNTY, 419TH JUDICIAL DISTRICT
NO. D-1-GN-15-000557, HONORABLE J. DAVID PHILLIPS, JUDGE
Chief Justice Rose, Justices Field and Bourland
K. Field, Justice
Stacey Hammer filed suit against University Federal Credit
Union, Venessa Zapata Peters (an employee of UFCU), and Kerry
Haliburton (an attorney for UFCU) (collectively, "the
UFCU Defendants") along with El Campo Real Estate, L.P.,
"whose general partner or owner is Wayne Morgan a/k/a
The Morgan Children Incorporated and Preferred
Properties." In her suit, Hammer brought various claims
arising out of the foreclosure of real property.
11, 2015, El Campo Real Estate, L.P., obtained a summary
judgment in its favor, dismissing Hammer's claims against
the limited partnership. In its order granting summary
judgment, the trial court severed Hammer's claims against
El Campo Real Estate from her remaining claims and assigned
the severed claims to a new cause number,
D-1-GN-15-002232. The remaining claims proceeded under the
original cause number, D-1-GN-15-000557, and comprise the
case before us.
original cause number, the UFCU Defendants subsequently filed
a motion for summary judgment on Hammer's claims against
them. On August 18, 2015, the trial court signed a
"final order, " granting the UFCU Defendants'
motion for summary judgment and awarding them $10, 000 in
attorney's fees plus costs of court. Almost four months
later, Wayne Morgan a/k/a Preferred Properties a/k/a The
Morgan Children, Inc. (Morgan) filed a motion for sanctions
in the case. See Tex. Civ. Prac. & Rem. Code
§ 10.001. On January 12, 2016, following a hearing at
which Hammer failed to appear, the trial court signed a
"final judgment" granting Morgan's motion,
dismissing Hammer's claims against Morgan, and awarding
sanctions in the amount of $37, 599.80.
April 20, 2016, Hammer filed two notices of appeal in this
Court, one seeking to appeal the "final order"
signed on August 18 and another seeking to appeal the
"final judgment" signed on January 12. In each
notice of appeal, Hammer asserts that she is entitled to
challenge the judgment by restricted appeal because she did
not participate in the hearing that resulted in the
challenged judgment. See Tex. R. App. P. 26.1(c) (in
restricted appeal, notice of appeal must be filed within six
months after judgment or order is signed); Clopton v.
Pak, 66 S.W.3d 513, 516 (Tex. App.-Fort Worth 2001, pet.
denied) (restricted appeal is available for limited purpose
of providing non-participating party opportunity to correct
erroneous judgment). The UFCU Defendants have now filed a
motion to dismiss, asserting that the summary judgment
granted in their favor on August 18, 2015, operated as a
final summary judgment in the case and that Hammer's
notice of appeal was untimely. See Tex. R. App. P.
26.1 (time to perfect appeal).
a few mostly statutory exceptions [not applicable here], an
appeal may be taken only from a final
judgment." Lehmann v. Har-Con Corp., 39
S.W.3d 191, 195 (Tex. 2001). There can be only one final
judgment in a case. Tex.R.Civ.P. 301; see Webb v.
Jorns, 488 S.W.2d 407, 409 (Tex. 1972) (recognizing that
interlocutory order becomes final for appeal when it merges
into final judgment disposing of whole case). The deadline
for filing a notice of appeal from a final judgment begins to
run on the date the trial court signs the final judgment.
See Tex. R. App. P. 26.1. Unless a notice of appeal
is timely filed, the appellate court does not have
jurisdiction over the appeal. See id. R. 25.1. In
this case, Hammer seeks to appeal two judgments that were
signed by the trial court in the same cause and that, on
their face, purport to be "final." Therefore, to
determine whether Hammer timely perfected an appeal, we first
examine whether the earlier judgment (the August 18
"final order") operates as the final judgment.
as in this case, there has been no traditional trial on the
merits, there is no presumption of finality of a judgment.
Crites v. Collins, 284 S.W.3d 839, 840 (Tex. 2009)
(per curiam). Rather, "when there has not been a
conventional trial on the merits, an order or judgment is not
final for purposes of appeal [(1)] unless it actually
disposes of every pending claim and party or [(2)] unless it
clearly and unequivocally states that it finally disposes of
all claims and all parties." Lehmann, 39 S.W.3d
at 205. "[T]he language of an order of judgment can make
it final, even though it should have been interlocutory, if
that language expressly disposes of all claims and all
parties." Id. at 200. "A statement like,
'This judgment finally disposes of all parties and all
claims and is appealable, ' would leave no doubt about
the court's intention." Id. at 206.
order that disposes of claims by only one of multiple
plaintiffs or against one of multiple defendants does not
adjudicate claims by or against other parties. Id.
at 205. Likewise, an order or judgment does not dispose of
all claims and all parties merely because the word
"final" appears in the order or judgment or because
it states that it is "appealable." Id.
Instead, the language of the order or judgment must clearly
indicate that the court intended to completely dispose of the
entire case. Id. But if that intent is clear, the
order is final and appealable, even if the record does not
provide an adequate motion or other legal basis for this
disposition. Id. at 200. In that case, the judgment
is erroneous and subject to reversal, "but it is not,
for that reason alone, interlocutory." Id.
"Language that the plaintiff take nothing by his claims
in the case, or that the case is dismissed, shows finality if
there are no other claims by other parties."
Id. at 205.
language in the August 18 "final order" on the UFCU
Defendants' motion for summary judgment indicates that
the trial court "clearly and unequivocally"
intended to dispose of the entire case. See id. The
record in this case reveals that, at the time the trial court
signed the August 18 summary judgment, no counterclaims,
cross-claims, or third-party claims had been asserted in the
case. See id. at 206 (explaining that "[t]he
record may help illumine whether an order is made final by
its own language"). Thus, the only claims in the case
were those claims asserted by Hammer against the defendants.
Although the "final order" does not expressly
mention any defendants other than the UFCU Defendants, it
concludes by stating that "because all claims for relief
by Plaintiff have been denied, this order shall be entered as
a final judgment in this action." See In re
Daredia, 317 S.W.3d 247, 249 (Tex. 2010) (concluding
that language in judgment clearly indicated it was intended
to be final even though it did not state that it was
"appealable"). Because the order purports to
finally dispose of all claims made by Hammer in the
suit-effectively providing that Hammer take nothing on her
claims-and because there were no other claims by any other
parties pending at that time, the order operates as a final
judgment for purposes of appeal. See Lehmann, 39
S.W.3d at 205.
the August 18 summary judgment "actually disposes of
every pending claim and party." See id. Hammer
sued and served only one defendant other than the UFCU
Defendants-El Campo Real Estate, L.P. Hammer's original
petition identifies the parties as UFCU, Venessa
Zapata-Peters, Kerry L. Haliburton, and "Defendant, El
Campo Real Estate L.P., " "whose general partner or
owner is Wayne Morgan a/k/a The Morgan Children Incorporated
a/k/a Preferred Properties." See Tex. R. Civ.
P. 79 (petition "shall state the names of the parties
and their residences, if known"); Yilmaz v.
McGregor, 265 S.W.3d 631, 637 (Tex. App.-Houston [1st
Dist.] 2008, pet. denied) ("To be a 'party' to a
lawsuit, one generally must be named in the pleadings and
either be served, accept or waive service, or make an
appearance."). Service of citation on El Campo Real
Estate was executed by "serving its general
partner/owner, Wayne Morgan a/k/a The Morgan Children,
Incorporated, a/k/a Preferred Properties." No attempt
was ever made to separately serve citation on Wayne Morgan,
The Morgan Children, or Preferred Properties as individual
defendants. To the extent Hammer sought a judgment against
Morgan as a consequence of his status as the general partner
of El Campo Real Estate, see Tex. Bus. Orgs. Code
§ 152.306(a) ("A judgment against a partnership is
not by itself a judgment against a partner. A judgment may be
entered against a partner who has been served with process in
a suit against the partnership."), any vicarious claim
against Morgan was necessarily disposed of when El Campo Real
Estate obtained a summary judgment in its favor, see
id. § 152.306(b) (providing that creditor may
proceed against property of partner to satisfy judgment based
on claims against partnership when judgment is obtained
against both). Because Hammer's claims against El Campo
Real Estate were severed from the instant action and Morgan
was not named as a defendant independent from his status as
the general partner of El Campo Real Estate, the August 18
"final order" dismissing Hammer's claims
against the UFCU Defendants actually dismissed the only
claims pending at the time. As a result, the August 18
summary judgment actually serves as a final judgment in the
the summary judgment in favor of the UFCU Defendants operates
as a final judgment, Hammer's deadline to appeal began to
run from August 18, 2015, the date the judgment was signed.
See Tex. R. App. P. 26.1 (generally, notice of
appeal must be filed within 30 days after judgment is
signed). On September 17, 2015, Hammer timely filed a
"motion for reconsideration and new trial, " which
was overruled by operation of law. See Tex. R. Civ.
P. 329b(a) (any motion for new trial or motion to modify,
correct or reform judgment must be filed within 30 days after
judgment is signed), (e) (timely motion considered overruled
by operation of law 75 days from date judgment is signed, if
not determined by that date). Consequently, Hammer's
deadline for filing an ordinary notice of appeal was extended
to November 16, 2015, and her deadline to file a notice of a
restricted appeal was February 18, 2016.See Tex.
R. App. P. 26.1(a) (when motion for new trial or other
post-judgment motion is filed, notice of appeal must be filed
within 90 days after judgment or order is signed), (c) (in
restricted appeal, notice of appeal must be filed within six
months after judgment or order is signed). Hammer did not
file any notice of appeal until April 20, 2016, long after
her appellate deadlines had expired. As a result, this Court
lacks jurisdiction to consider the merits ...