Ace Transportation, Inc. v. Timothy Webb ( 1994 )

Ace v. Webb

IN THE

TENTH COURT OF APPEALS

No. 10-94-060-CV

     ACE TRANSPORTATION, INC.,

                                                                                              Appellant

     v.

     TIMOTHY WEBB,

                                                                                              Appellee

From the 87th District Court

Leon County, Texas

Trial Court # 5811-B

                                                                                                    

MEMORANDUM OPINION

                                                                                                    

      Appellant appealed a December 1993 judgment rendered on a jury verdict. The transcript, received in this Court on April 7, 1994, contains a motion for a new trial. However, as of the date of this order, this Court has received no statement of facts or an appellant's brief and no motion for an extension of time to file same has been received. See Tex. R. App. P. 54(a).

      Therefore, this appeal is dismissed. See id.; id. at 60(a), 74(l)(1).

                                                                               PER CURIAM

Before Chief Justice Thomas,

      Justice Cummings, and

      Justice Vance

      Dismissed

      Opinion delivered and filed June 1, 1994

      Do not publish

If this is a “final judgment,” then Myers’s appeal is untimely.

          In Lehmann v. Har-Con Corp., the Supreme Court overruled prior decisions which held that the inclusion of a Mother Hubbard clause in an otherwise interlocutory judgment renders that judgment final and appealable.  39 S.W.3d 191, 203-04 (Tex. 2001).  The Court observed in the next paragraph, however, that “an order can be a final judgment for appeal purposes even though it does not purport to be if it actually disposes of all claims still pending in the case.”  Id. at 204.  “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.

          Here, the April 7 judgment decrees that “Myers take nothing against Defendant Sam Houston State University and that said Defendant recover all cost[s]” from Myers.  According to the Supreme Court, this is a final judgment for purposes of appeal.  Ritzell v. Espeche, 87 S.W.3d 536, 538 (Tex. 2002) (per curiam).

          Because Myers filed a motion to reconsider the April 7 judgment within thirty days after that judgment, her notice of appeal was due on or before July 6.  Because she did not file a notice of appeal until September 7, her notice is untimely. Therefore, we grant Sam Houston State’s motion and dismiss this appeal for want of jurisdiction.  See Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 564 (Tex. 2005).

PER CURIAM

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Appeal dismissed

Opinion delivered and filed November 1, 2006

[CV06]

         

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[1]           The trial court had previously granted summary judgment motions filed by Sam Houston State employees whom Myers had also named as defendants.  Thus, Sam Houston State was the only remaining defendant when it filed its own summary judgment motion.