HENRY GUERRA, SR., REBECCA GOMEZ GUERRA, MICHAEL GUERRA, BLANCA GUAJARDO, ESTHER GOMEZ TRISTAN, LINDA RUTH GARZA, AND LAURO GARZA, Appellants
THE STATE OF TEXAS, Appellee
Appeal from the 80th District Court Harris County, Texas
Trial Court Cause No. 2014-70768
consists of Justices Jamison, Busby, and Donovan.
Hill Jamison, Justice
Henry Guerra, Sr., Rebecca Gomez Guerra, Michael Guerra,
Blanca Guajardo, Esther Gomez Tristan, Linda Ruth Garza, and
Lauro Garza challenge the trial court's grant of summary
judgment in favor of appellee, the State of Texas, on the
basis that summary judgment was untimely because the parties
had not completed alternative dispute resolution (ADR) before
the summary judgment hearing, as they believe was required by
the court's docket control order. The State argues that we
lack jurisdiction over this appeal and that appellants did
not preserve error as to their sole appellate complaint. We
conclude that we have jurisdiction but agree with the State
that appellants did not preserve error. We affirm.
State filed this lawsuit on December 5, 2014, alleging that
appellants, among others, in the course of operating an adult
home schooling center, engaged in violations of the Deceptive
Trade Practices-Consumer Protection Act and the Assumed
Business or Professional Name Act. On December 10, 2015, the
trial court signed a docket control order requiring the
parties, among other things, to (1) file an agreement for ADR
or set an objection to ADR by February 29, 2016, (2) complete
ADR by May 27, 2016, and (3) have dispositive motions, such
as for summary judgment, heard by April 25, 2016.
State filed its motion for summary judgment on March 28,
2016, but the trial court did not render final summary
judgment until June 10, nearly two weeks after the deadline
for completion of ADR. Appellants filed no response to the
Henry Guerra, Jr., who is not a party to this appeal, filed a
motion for new trial, which was granted. The trial court
vacated the summary judgment only as to Guerra, Jr.
Appellants filed a notice of appeal on September 12, and the
trial court signed a revised final summary judgment on
October 7, disposing of all claims and all parties.
Premature Notice of Appeal Deemed Filed after Final
begin by addressing whether we have jurisdiction over this
appeal. The State argues that we lack jurisdiction because
the order identified in appellants' notice of appeal, the
summary judgment dated June 10, 2016, became an interlocutory
order on August 19, when the trial court vacated the summary
judgment as to Guerra, Jr. See Lehmann v. Har-Con Corp.,
39 S.W.3d 191, 205 (Tex. 2001) ("[W]hen there has not
been a conventional trial on the merits, an order or judgment
is not final for purposes of appeal unless it actually
disposes of every pending claim and party or unless it
clearly and unequivocally states that it finally disposes of
all claims and all parties."). Appellants filed their
notice of appeal on September 12. The trial court rendered
final summary judgment disposing of all claims and all
parties, including Guerra, Jr., on October 7. Thus,
appellants' notice of appeal was premature. However, a
prematurely filed notice of appeal is deemed filed after the
trial court renders final judgment. See Tex. R. App.
P. 27.1 ("In a civil case, a prematurely filed notice of
appeal is effective and deemed filed on the day of, but
after, the event that begins the period for perfecting the
appeal."). Accordingly, we have jurisdiction over this
appeal. See Lerma v. Forbes, 144 S.W.3d 16, 18 (Tex.
App.-El Paso 2004, no pet.).
No Preservation of Error
address whether appellants preserved error on their argument
that the trial court erred in granting summary judgment
because the parties had not completed ADR before the summary
judgment hearing, which they allege was required by the
court's docket control order. The State argues appellants
failed to preserve error because they did not respond to the
State's summary judgment motion. We agree.
non-movant to a summary judgment motion is not required to
answer or respond to the motion to contend on appeal that the
grounds expressly presented in the motion are insufficient as
a matter of law to support summary judgment. City of
Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678
(Tex. 1979). The non-movant, however, may not raise any other
issues as grounds for reversal for the first time on appeal.
Id. In other words, any issues that a non-movant
contends avoid summary judgment must be expressed in a
written response or answer to the motion. McConnell v.
Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.
1993); KBG Investments, LLC v. Greenspoint Prop.
Owners' Ass'n, 478 S.W.3d 111, 114 (Tex.
App.-Houston [14th Dist.] 2015, no pet.); see also Clear
Creek Basin Auth., 589 S.W.2d at 678 ("[T]he
nonmovant must expressly present to the trial court any
reasons seeking to avoid movant's entitlement
[to summary judgment].").
seek to avoid summary judgment because the parties apparently
had not completed ADR before the summary judgment hearing.
Therefore, to preserve error on this issue, they were
required to raise it in response to the State's summary
judgment motion, which they failed to do. Concluding that