Solum Engineering, Inc. v. Martha M.J. Starich AKA Marie J. Starich and Lori A. Hood ( 2012 )

Motion for Rehearing Overruled; Memorandum Opinion of September 13, 2012
Withdrawn; Dismissed and Substitute Memorandum Opinion filed October 11,
2012.
In The
Fourteenth Court of Appeals
NO. 14-11-00891-CV
SOLUM ENGINEERING, INC., Appellant
V.
MARTHA M.J. STARICH AKA MARIE J. STARICH AND LORI A. HOOD,
Appellees
On Appeal from the 61st District Court
Harris County, Texas
Trial Court Cause No. 2011-35151
SUBSTITUTE MEMORANDUM OPINION
We overrule the motion for rehearing; we withdraw our memorandum opinion
dated September 13, 2012, and issue the following substitute memorandum opinion.
Appellant Solum Engineering, Inc. sued appellees Martha Starich and Lori Hood
in Fort Bend County. In nine issues, Solum complains on appeal about the Fort Bend
County trial court’s order transferring the suit to Harris County and various orders
entered by the trial court in Harris County. Because the trial court has not signed a final
judgment, we dismiss this appeal.
BACKGROUND
Solum sued Starich and Hood in Fort Bend County. On April 27, 2011, Hood
noticed a hearing for June 3 on her motion to transfer venue to Harris County. On June 3,
the 434th District Court in Fort Bend County transferred the suit to Harris County.
Solum did not pay the filing fee in Harris County.1 Hood filed a motion for summary
judgment and motion for sanctions on August 1. Starich filed a motion to dismiss on
August 15, arguing that the suit should be dismissed because of Solum’s failure to pay
the filing fee required by Texas Rule of Civil Procedure 89. Two days later, Solum
moved for dismissal without prejudice of all of its claims against both defendants. 2 The
trial court granted Solum’s motion to dismiss on August 19.
Three days later, Hood filed a motion to reinstate the cause “for the purpose of
hearing Hood’s Motion for Sanctions.” Solum filed a response, contending that the
motion for sanctions was not “pending” because Solum did not pay the Rule 89 filing fee
for the transfer to Harris County. The trial court signed an order reinstating the case on
September 20 “for the purpose of hearing and ruling on . . . Hood’s Motion for Sanctions
and other pending matters.”
1
Texas Rule of Civil Procedure 89 states in part:
After the cause has been transferred, as above provided for the clerk of the court to which
the cause has been transferred shall mail notification to the plaintiff or his attorney that
transfer of the cause has been completed, that the filing fee in the proper court is due and
payable within thirty days from the mailing of such notification, and that the case may be
dismissed if the filing fee is not timely paid; and if such filing fee is timely paid, the
cause will be subject to trial at the expiration of thirty days after the mailing of
notification to the parties or their attorneys by the clerk that the papers have been filed in
the court to which the cause has been transferred; and if the filing fee is not timely paid,
any court of the transferee county to which the case might have been assigned, upon its
own motion or the motion of a party, may dismiss the cause without prejudice to the
refiling of same.
Tex. R. Civ. P. 89.
2
Solum did not mention Rule 89 or its failure to pay the filing fee.
2
Solum filed a notice of appeal on October 3, stating its “desire[] to appeal from the
appealable order reinstating this case signed by this court on September 20, 2011.” The
trial court held a hearing on Hood’s motion for sanctions on October 7, but the record
contains no ruling on the motion. The trial court notified the parties on November 8 that
the case would have a disposition deadline of April 23, 2012.
ANALYSIS
In nine issues, Solum complains about the 434th District Court’s order transferring
the case to Harris County, the 61st District Court’s order reinstating the case, the validity
of Hood’s summary judgment and sanctions motion, and the trial court’s notice of
disposition deadline.3 In particular, Solum contends that its failure to pay the filing fee
required by Texas Rule of Civil Procedure 89 prevented the case from being assigned and
docketed in Harris County; therefore, Solum alleges all subsequent trial court orders were
void. Hood contends among other things that we should dismiss the appeal because there
is no final judgment disposing of all claims and parties from which Solum may appeal.4
“[T]he general rule, with a few mostly statutory exceptions, is that an appeal may
be taken only from a final judgment. A judgment is final for purposes of appeal if it
disposes of all pending parties and claims in the record, except as necessary to carry out
3
Solum’s issues are: (1) “Whether the Fort Bend County trial court’s order of June 3,
2011, transferring venue of this case to Harris County, is void, because the court held its transfer
of venue hearing without giving the 45-day notice required by TRCP 87;” (2) “Whether, under
TRCP 89, this transfer of venue case was never assigned and placed on the docket of the 61st
District Court, because the filing fee had not been paid;” (3) “Whether TRCP 89 precluded the
docketing of Appellee Hood’s motions in the 61st District Court, absent payment of the filing
fee;” (4) “Whether, after ordering dismissal of a case, on its own motion or motion of a party,
TRCP 89 precludes the dismissing district court from reinstating a transfer of venue case, except
on Plaintiff’s motion in order to pay the filing fee;” (5) “Whether TRCP 89 required the Harris
County District Clerk to notice all parties that the filing fee had been paid and the case was
subject to trial, before the 61st District Court could act on Appellee Hood’s motions;” (6)
“Whether the trial court erred in reinstating this case on September 20, 2011, because its plenary
power had expired on September 18, 2011;” (7) “Whether Appellee Hood’s Motion for Summary
Judgment and Motion for Sanctions was invalid for lack of a valid affidavit;” (8) “Whether TRCP
89 precluded the trial court from granting sanctions and attorneys [sic] fees, because the filing fee
had not been paid;” (9) “Whether the 61st District Court’s Notice of Disposition Deadline of
November 8, 2011 is void for failure to state grounds for dismissal.”
4
Starich did not file a brief on appeal.
3
the decree.” Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). To determine
if an order is final, we “must examine the express language of the order and whether the
order actually disposes of all claims against all parties.” Crites v. Collins, 284 S.W.3d
839, 840 (Tex. 2009).
Hood correctly notes that the trial court has not signed a final judgment in this
case. Hood filed a motion for sanctions before the trial court dismissed and then
reinstated the case. The trial court’s dismissal order did not specifically address Hood’s
previously filed motion for sanctions. “A judgment dismissing all of a plaintiff’s claims
against a defendant, such as an order of nonsuit, does not necessarily dispose of any
cross-actions, such as a motion for sanctions, unless specifically stated within the order.”
Id. Further, an “order reinstating a case after its dismissal is inherently, and beyond
question, interlocutory.” Johnson Radiological Grp. v. Medina, 566 S.W.2d 117, 118
(Tex. Civ. App.—Houston [14th Dist.] 1978, writ dism’d) (dismissing appeal). And
usually an “appeal does not immediately lie from a trial court order transferring venue.”
Surgitek, Bristol-Myers Corp. v. Abel, 997 S.W.2d 598, 601 (Tex. 1999); see also Tex.
Civ. Prac. & Rem. Code Ann. § 15.064(a) (Vernon 2002).
Solum suggests that all actions taken by the 61st District Court are a nullity
because “[t]here is no ‘trial court’ in Harris County under TRCP 89.”5 Regardless of
whether Solum ultimately prevails with this argument, it is immaterial for purposes of
determining whether the trial court signed a final judgment from which Solum may
appeal. We lack jurisdiction by appeal to review a trial court’s interlocutory orders even
if such orders are void. See Young v. Villegas, 231 S.W.3d 1, 6 (Tex. App.—Houston
[14th Dist.] 2007, pet. denied).
Hood filed a motion for sanctions before the trial court dismissed Solum’s claims
5
Solum argues that the case was never assigned and placed on the docket in Harris
County because Solum declined to pay the filing fee required by Rule 89. Solum relies on the
Texas Attorney General’s opinion: “If the filing fee is not paid, any district court ‘to which the
case might have been assigned’ may dismiss the cause. This last phrase, contained in rule 89, we
believe, implies that the case is not ‘assigned,’ that is, placed on the docket of a particular court,
before the filing fee is paid.” Tex. Att’y Gen. Op. No. JM-216 (1984).
4
against Hood and Starich. The trial court reinstated the case for purposes of ruling on the
sanctions motion, and the court held a hearing on the sanctions motion without signing a
judgment disposing of the motion. The trial court has not signed a final judgment. See
Unifund CCR Partners v. Villa, 299 S.W.3d 92, 96–97 (Tex. 2009); Crites, 284 S.W.3d
at 840.
CONCLUSION
Having concluded that the trial court did not sign a final judgment from which an
appeal may be taken, we dismiss this appeal.
/s/ William J. Boyce
Justice
Panel consists of Justices Boyce, Christopher, and Jamison.
5