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Ingram v. City of Houston

Court of Appeals of Texas, First District

August 1, 2019

GINGER INGRAM, Appellant
v.
CITY OF HOUSTON AND OFFICER JASON KENT HALL, Appellees

          On Appeal from the 55th District Court Harris County, Texas Trial Court Case No. 2018-27972.

          Panel consists of Justices Chief Justice Radack and Justices Landau and Hightower.

          MEMORANDUM OPINION

          PER CURIAM.

         Appellant, Ginger Ingram, attempts to appeal the trial court's order granting partial summary judgment in favor of appellee, the City of Houston. On May 6, 2019, the City filed a motion to dismiss, arguing that appellant untimely filed her notice of appeal. On May 16, 2019, appellant responded, arguing that the trial court had yet to rule on an outstanding motion and that we should suspend any deadline imposed by our appellate rules.

         Generally, a notice of appeal is due within thirty days after the judgment is signed. See Tex. R. App. P. 26.1. The deadline to file a notice of appeal is extended to ninety days after the date the judgment is signed if any party timely files a motion for new trial, motion to modify the judgment, motion to reinstate, or, under certain circumstances, a request for findings of fact and conclusions of law. See Tex. R. App. P. 26.1(a). The time to file a notice of appeal may also be extended if, within fifteen days after the deadline to file the notice of appeal, a party properly files a motion for extension. See Tex. R. App. P. 10.5(b), 26.3.

         A notice of nonsuit terminates a case from the moment the motion is filed. See Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). However, when a nonsuit is filed after a partial judgment has been signed, such as here, the judgment does not become final until the trial court signs either an order granting the nonsuit or a final judgment explicitly memorializing the nonsuit. See Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex. 1995) (per curiam). "When a judgment is interlocutory because unadjudicated parties or claims remain before the court, and when one moves to have such unadjudicated claims or parties removed by severance, dismissal, or nonsuit, the appellate timetable runs from the signing of a judgment or order disposing of those claims or parties."

         Here, the record reflects that the trial court signed an order, dismissing all of appellant's claims against the City on December 11, 2018. The order specifically mentioned that the order was not final because claims remained pending against Jason Hall. On January 29, 2019, appellant filed a notice of nonsuit of her remaining claims against Jason Hall. See Travelers, 315 S.W.3d at 862 (stating that nonsuit terminates case from moment motion for nonsuit is filed). Two days later, on January 31, 2019, the trial court granted appellant's nonsuit of her remaining claims against Jason Hall. Appellant did not file a motion for new trial. See Tex. R. Civ. P. 329b(a). Once the trial court signed appellant's nonsuit, the interlocutory summary judgment became final, and the appellate timetable ran from January 31, 2019. See Farmer, 907 S.W.2d at 496. Therefore, appellant's notice of appeal was due by March 2, 2019. See Tex. R. App. P. 26.1(a).

         Appellant untimely filed her notice of appeal on March 29, 2019. Without a timely filed notice of appeal, this Court lacks jurisdiction over the appeal. See Tex. R. App. P. 25.1.

         In her response to the motion to dismiss, appellant argues that she filed a motion for entry of final judgment on March 1, 2019 and that the trial court did not rule on the motion. Appellant then filed a notice of appeal on March 29, 2019, twenty-seven days past the due date. Without citation to authority, appellant states that because the trial court "did not make a specific ruling to make the December 11, 2018 interlocutory judgment granting a partial summary judgment in favor of the City of Houston a final judgment" the deadline to file a notice of appeal had "not begun to run." We disagree. As pointed out in Farmer, the appellate timetable began to run once the trial court signed appellant's notice of nonsuit. See Farmer, 907 S.W.2d at 496.

         In the alternative, appellant argues that we should allow her to proceed with her appeal because of "confusion or error for good cause would be prejudicial to Appellant." Appellant asks this Court to suspend the deadline imposed by our rules pursuant to Texas Rule of Appellate Procedure 2. However, we decline appellant's invitation because Rule 2 specifically states that we cannot "alter the time for perfecting an appeal in a civil case." See Tex. R. App. P. 2.

         Accordingly, we grant the motion to dismiss and dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 43.2(f). ...


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