Patricia Bonton v. Michael Scott Wittmer

Dismissed and Memorandum Opinion filed April 29, 2004

Dismissed and Memorandum Opinion filed April 29, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-03-00932-CV

____________

PATRICIA BONTON, Appellant

V.

MICHAEL SCOTT WITTMER, Appellee

On Appeal from the County Civil Court at Law No. 2

Harris County, Texas

Trial Court Cause No. 787,416

M E M O R A N D U M   O P I N I O N

The county court dismissed Patricia Bonton=s suit against Michael Scott Wittmer for lack of jurisdiction. Bonton filed a pro se appeal in which she contends the county court erred in dismissing her suit instead of transferring it to the appropriate court.  We dismiss for lack of jurisdiction.

PROCEDURAL BACKGROUND

On January 31, 2003, Bonton filed suit against Wittmer, Specialty Risk Services, and Airborne Express.  Bonton claimed she suffered property and bodily injury damages in excess of $1,000,000 in a car accident that occurred on or about February 4, 2001.  Wittmer was properly served with citation, but Specialty Risk Services and Airborne Express were not.

On May 6, 2003, Wittmer filed a motion to dismiss for lack of jurisdiction, claiming the county court lacked jurisdiction because the amount in controversy exceeded the statutory maximum for the court.  On May 19, 2003, the court held a hearing on the motion and granted it. The court=s order dismissed the claims against Wittmer, but it made no reference to the claims against either Specialty Risk Services or Airborne Express.

On June 11, 2003, Wittmer filed a motion for entry of final judgment.  On July 17, 2003, the court entered an order dismissing the claims against all of the defendants.

On July 24, 2003, Bonton filed her notice of appeal and this appeal followed.

ANALYSIS

I.        Nature of the Appeal.

We must first determine whether the court=s May 19, 2003 order dismissing the claims against Wittmer was final.  If the order was final, then Bonton is limited to filing a restricted appeal because she did not file her notice within thirty days of the order.^[1]  See Tex. R. App. P. 26.1.

As a general rule, an appeal may only be taken after a final judgment.  Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001).  AA 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 the decree.@  Id. When a plaintiff does not serve a defendant and there is no indication she ever intends to do so, the case stands as if there had been a discontinuance to that defendant.  Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 232 (Tex. 1962).^[2]  In that circumstance, a judgment that finally disposes of all parties that had been served is considered final for the purposes of appeal.  Id.

Because Bonton did not serve Specialty Risk Services or Airborne Express and there is no evidence she intended to do so, the trial court=s May 19, 2003 order was final for the purposes of appeal.  Therefore, Bonton=s July 24, 2003 notice of appeal was not within the thirty-day deadline for a traditional appeal, and Bonton is limited to bringing a restricted appeal.  See Tex. R. Civ. P. 26.1.

II.       Requirements for a Restricted Appeal.

In order for a restricted appeal to succeed, (1) it must be brought within six months after the judgment is signed (2), by a party to the suit, (3) who did not participate in the hearing that resulted in the judgment or file a timely post-judgment motion, request for findings of fact and conclusions of law, or other notice of appeal, and (4) the claimed error must be apparent on the face of the record.  Conseco Fin. Servicing v. Klein Indep. Sch. Dist., 78 S.W.3d 666, 670 (Tex. App.CHouston [14th Dist.] 2002, no pet.); see also Tex. R. App. P. 30.  The extent of participation in a hearing that will preclude a restricted appeal depends on the nature of the proceeding.  Texaco, Inc. v. Cent. Power & Light Co., 925 S.W.2d 586, 589 (Tex. 1996).  The issue is not whether a party attended the hearing, but whether the party Ahas participated in >the decision‑making event= that results in judgment adjudicating [her] rights.@  Id.; accord Rivero v. Blue Keel Funding, L.L.C., 127 S.W.3d 421, 423B24 (Tex. App.CDallas 2004, no pet.).

Bonton did not attend the May 19, 2003 hearing on the motion to dismiss for lack of jurisdiction.  Instead, she submitted a response motion, which included her arguments in response to Wittmer=s motion to dismiss and her  request that the hearing be removed from the docket.  Because she availed herself of her opportunity to respond to the motion and presented her arguments to the court, she participated in the Adecision-making event@ that resulted in dismissal.  Cf. Texaco, 925 S.W.2d at 589 (A[A] party who has taken part in all steps of a summary judgment proceeding except the hearing on the motion has participated in the >actual trial= that determined the parties rights.@).

Further, when jurisdiction is challenged based on the amount in controversy, the plaintiff=s pleadings are generally determinative.  See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); Arteaga v. Jackson, 994 S.W.2d 342, 343 (Tex. App.CTexarkana 1999, pet. denied) (AWhen a plaintiff specifically pleads an amount below the jurisdiction of the district court, he has effectively pleaded himself out of court.@). The court could determine from Bonton=s pleadings alone that the amount in controversy was outside its jurisdiction.  See Tex. Gov=t Code ' 25.0003(c)(1) (providing a county court with jurisdiction over Acivil cases in which the matter in controversy exceeds $500 but does not exceed $100,000, . . . as alleged on the face of the petition@). Thus, the hearing was not necessary to decide the motion.

Because Bonton failed to demonstrate that she did not participate in the hearing, she is not entitled to a restricted appeal.  Accordingly, we dismiss appellant=s restricted appeal for lack of jurisdiction.

/s/      Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed April 29, 2004.

Panel consists of Justices Fowler, Edelman, and Seymore.

---

^[1]  We note that Bonton filed a motion for rehearing on June 30, 2003.  A motion for rehearing may be considered a motion for new trial, thus extending the deadline to ninety days.  Finley v. J.C. Pace Ltd., 4 S.W.3d 319, 320 & n.1 (Tex. App.CHouston [1st Dist.] 1999) (order); see also Tex. R. Civ. P. 71; Tex. R. App. P. 26.1(a).  However, Bonton=s motion for rehearing was also not filed within thirty days of the order.  Thus, if the order was final, the motion for rehearing was also not timely filed and the court=s plenary power would have expired.  See Tex. R. Civ. P. 329b(a); see also Lane Bank Equip. Co. v. Smith S. Equip. Co., 10 S.W.3d 308, 310 (Tex. 2000).

^[2]  As we previously noted in Wilkins v. Methodist Health Care Sys., 108 S.W.3d 565, 569 n.12 (Tex. App.CHouston [14th Dist.] 2003, pet. granted), it is unclear whether Youngstown survives Lehmann v. Har‑Con Corp., 39 S.W.3d 191, 205 (Tex. 2001).  Two of our sister courts have expressly held that Youngstown survives Lehman.  See In re Miranda, ___ S.W.3d ___, No. 08‑03‑00487‑CV, 2004 WL 594956, at *2B3 (Tex. App.CEl Paso March 25, 2004, no pet. h.); In re Nasir, ___ S.W.3d ___, No. 08‑03‑00489‑CV, 2004 WL 594978, at *2B3 (Tex. App.CEl Paso March 25, 2004, no pet. h); Rape v. M.O. Dental Lab, 95 S.W.3d 712, 715 (Tex. App.CFort Worth 2003, pet. filed).  Other courts also have continued to apply Youngstown.  See Miranda, 2004 WL 594956, at *2 (citing decisions by the Beaumont and Dallas Courts of Appeals); Nasir, 2004 WL 594978, at *2 (same).  Youngstown, a pronouncement by the Supreme Court, involved a summary judgment proceeding and has been applied for many years.  Lehmann did not involve an unserved defendant and does not clearly overrule Youngstown.  For these reasons, we will continue to follow Youngstown until directed not to follow it.