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Hammer v. University Federal Credit Union

Court of Appeals of Texas, Third District, Austin

March 30, 2017

Stacey Hammer, Appellant
v.
University Federal Credit Union; Wayne Morgan a/k/a El Campo Real Estate, LP a/k/a The Morgan Children, Inc. a/k/a Preferred Properties; Venessa Zapata Peters; and Kerry L. Haliburton, Appellees

         FROM THE DISTRICT COURT OF TRAVIS COUNTY, 419TH JUDICIAL DISTRICT NO. D-1-GN-15-000557, HONORABLE J. DAVID PHILLIPS, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Field and Bourland

          MEMORANDUM OPINION

          Scott K. Field, Justice

         Appellant 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.

         On June 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.[1] The remaining claims proceeded under the original cause number, D-1-GN-15-000557, and comprise the case before us.

         In the 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.

         On 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).

         "[W]ith a few mostly statutory exceptions [not applicable here], an appeal may be taken only from a final judgment."[2] Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). There can be only one final judgment in a case.[3] 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.

         When, 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.

         An 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.

         The 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.

         Moreover, 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 case.

         Because 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.[4]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 ...


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