law-finality | timeliness of notice of appeal | appellate timetable deadlines | final judgment rule | one
final judgment rule |
The appellate timetable does not begin to run until a written order is signed. Farmer v. Ben E.
Keith Co., 907 S.W.2d 495, 496 (Tex. 1995). Even if the trial court made an oral ruling, that is not
a substitute for a written order. Hubbard-Jowers v. Starfire Enters., Ltd., No. 02-06-462-CV, 2007
WL 439052, at *1 (Tex.App.--Fort Worth Feb. 8, 2007, no pet.) (mem.opin.).
Appellant has not demonstrated that a written order has been signed. We therefore dismiss the
appeal for lack of jurisdiction. See Tex.R.App.P. 42.3(a); see also Tex.Gov't Code Ann. § 22.220(c)
(West Supp. 2011)("Each court of appeals may, on affidavit or otherwise, as the court may
determine, ascertain the matters of fact that are necessary to the proper exercise of its
jurisdiction."). Appellant's motion to proceed with only one copy of the brief is denied as moot.
JURISDICTION OF THE COURT OF APPEALS
Appellate jurisdiction is never presumed. Brashear v. Victoria Gardens of McKinney, L.L.C., 302 S.
W.3d 542, 546 (Tex. App.-Dallas 2009, no pet.). Unless the record affirmatively shows the
propriety of appellate jurisdiction, we must dismiss. Id. When the appellant has not filed in the trial
court a timely motion for new trial, motion to modify the judgment, motion to reinstate, or request
for findings of fact and conclusions of law, the notice of appeal must generally be filed within thirty
days after the judgment or other appealable order is signed. Tex. R. App. P. 26.1(a). Without a
timely filed notice of appeal, this Court lacks jurisdiction. See Tex. R. App. P. 25.1(b); In re E.M.A.,
No. 05-11-00596-CV, 2011 WL 3672297, at *1 (Tex. App.-Dallas Aug. 23, 2011, no pet. h.) (per
curiam) (mem. op.).
Erroneous Entry of Final Order / judgment
Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001) (if final disposition of case is
unequivocally expressed in the words of order itself, then order is final and appealable, even
though record does not provide an adequate basis for rendition of judgment); see also In re
Guardianship of Miller III, 299 S.W.3d 179, 184 (Tex. App.-Dallas 2009, no pet.); Pinnacle Data
Servs., Inc. v. Gillen, 104 S.W.3d 188, 199 (Tex. App.-Texarkana 2003, no pet.) (“Where, as here,
a final summary judgment has disposed of a case and included causes of action not addressed in
the underlying motion, that judgment is erroneous and must be affirmed as to the causes of action
properly adjudged and remanded as to those causes of action not addressed in the underlying
Finality of Dismissal Orders
Unless a statute specifically authorizes an interlocutory appeal, appellate courts have jurisdiction
over final judgments only. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). When
there has not been a conventional trial on the merits, an order or judgment is not final for the
purposes of appeal unless it actually disposes of all parties and all claims pending in the case or it
states with “unmistakable clarity” that it is a final judgment as to all claims and all parties. Id. at 192-
93, 205. An order dismissing the case “shows finality if there are no other claims by other parties.”
Id. at 205; see also Ritzell v. Espeche, 87 S.W.3d 536, 538 (Tex. 2002) (per curiam). If the
language of the order expressly disposes of all claims and all parties, “the order is final and
appealable, even though the record does not provide an adequate basis for the rendition of
judgment.” Lehmann, 39 S.W.3d at 200.
FINALITY OF JUDGMENT AS PREREQUISITE FOR REGULAR APPEAL
Also see --> interlocutory appeals
Generally, an order denying a summary judgment motion is not appealable because it is an
interlocutory order and not a final judgment. Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex.
1994). It is well-settled that an interlocutory order that does not dispose of all issues against all
parties is not immediately appealable, except in narrow situations expressly authorized by statute.
Gross v. Innes, 988 S.W.2d 727, 729 (Tex. 1998) (per curiam); Jack B. Anglin Co., Inc. v. Tipps,
842 S.W.2d 266, 272 (Tex. 1992). Section 51.014 designates the civil orders that may be
appealed on an interlocutory basis, and is strictly construed. TEX. CIV. PRAC. & REM. CODE ANN.
§ 51.014; Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex. 2001). Subsection (d) of
section 51.014 permits an agreed interlocutory appeal of otherwise un-appealable orders,
including the denial of a summary judgment motion, upon the trial court's certification of the
statutory requirements, i.e., an agreed controlling question of law on which there is substantial
ground for disagreement and on which an immediate appeal may materially advance the ultimate
resolution of the case. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d).
TEXAS SUPREME COURT DECISION(S)
Vaughn v. Drennon, No. 10-0226 (Tex. Oct. 22, 2010)(per curiam)(presumption of finality of
judgment after conventional trial for purposes of appeal)
MILLARD VAUGHN AND BARBARA VAUGHN v. PAUL DRENNON AND MARY DRENNON; from
Sabine County; 12th district (12-09-00064-CV, ___ SW3d ___, 12-31-09)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and
without hearing oral argument, the Court reverses the court of appeals' judgment and remands the
case to that court.
Per Curiam Opinion [pdf]
View Electronic Briefs in 10-0226 VAUGHN v. DRENNON
New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 679 (Tex. 1990) (per curiam)
(reversing the court of appeals’ judgment and rendering judgment dismissing the appeal for lack of
jurisdiction because the trial court had not rendered a final judgment) (citing Long v. Humble Oil &
Refining Co., 380 S.W.2d 554, 555 (Tex. 1964) (per curiam)); see also Brooks v. Northglen Ass’n,
141 S.W.3d 158, 164 (Tex. 2004); Brown v. Todd, 53 S.W.3d 297, 306 (Tex. 2001).
SUA SPONTE JURISDICTIONAL INQUIRY BY REVIEWING COURT
Although neither party raises the issue, we must first determine whether Dr. Frances B. Crites
timely filed her notice of appeal, and thus whether the court of appeals had jurisdiction. Tex. Ass’n
of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443–44 (Tex. 1993). Dr. Crites filed her notice of
appeal on March 24th, more than thirty days after the trial court signed the order of nonsuit, but
less than thirty days after the trial court signed the order denying the motion for sanctions. Under
Texas Rule of Appellate Procedure 26.1,“[t]he notice of appeal must be filed within 30 days after
the judgment is signed . . . .” Tex. R. App. P. 26.1. The question here is whether the order of
nonsuit or the order denying sanctions triggered the thirty day filing period. See id.
Crites, MD v. Collins, No. 07-0315 (Tex. May 1, 2009)(per curiam)
(defendant's counterclaim for sanctions in the form of attorney's fees may proceed following med-
mal plaintiff's nonsuit)(finality of judgment, nonsuit order, timeliness of notice of appeal, deadline
for filing notice of appeal)
NO PRESUMPTION OF FINALITY
We have previously held that, when there has been no traditional trial on the merits, no
presumption arises regarding the finality of a judgment. Lehmann v. Har-Con Corp., 39 S.W.3d
191, 199–200 (Tex. 2001).
To determine whether an order is final, courts and parties must examine the express language of
the order and whether the order actually disposes of all claims against all parties. Id. at 200. If
neither examination indicates that the order is final, then the order is interlocutory and
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. at 199. If other claims remain in the case, “an order
determining the last claim is final.” Id. at 200.
Because there was no trial on the merits in this case, no presumption of finality arose as to the
order of nonsuit. Therefore, we examine the language of the order and whether it disposed of all
claims. The order of nonsuit included a typed portion, which said: “A NOTICE OF NON-SUIT
HAVING BEEN RECEIVED BY THE COURT, THE ABOVE ENTITLED AND NUMBERED CAUSE IS
HEREBY DISMISSED . . . .” After that language, the presiding judge redacted the remainder of the
sentence and inserted, by hand, “as to Def[endant] Frances B. Crites only,” without mentioning Dr.
Crites’s motion for sanctions.
In Lehmann, we found instructive, as evidence of the trial court’s intent, the fact that the trial court
issued an order forty-six days after he signed the summary judgment order that set the case for
trial. Id. at 195. Likewise, it is instructive here that the trial court held a hearing on the motion for
sanctions thirty-six days after signing the order of nonsuit.
The language of the order at issue does not unequivocally express an intent to dispose of all
claims and all parties; instead, it specifically disposes of only the plaintiffs’ claims against
the defendant. See id. at 199. Dr. Crites had already filed a motion for sanctions at the time the
trial court signed the order of nonsuit. Therefore, it remained pending when the trial court signed
the order of nonsuit, and the order of nonsuit did not resolve the pending motion because it did not
contain specific language denying or granting relief.
Because the order of nonsuit itself does not unequivocally express an intent for the order to be a
final and appealable order, and because it does not address all pending claims, the order was
not final. Only when the trial court issued its second order denying sanctions was a final order
entered, and only at that point did the case become appealable. Id. at 200; see also Villafani v.
Trejo, 251 S.W.3d 466, 468 (Tex. 2008) (holding that “the trial court’s denial of Villafani’s motion
for sanctions and dismissal and Trejo’s nonsuit collectively disposed of all the claims between the
two parties”) (emphasis added). As a result, Dr. Crites’s notice of appeal, which she filed thirty
days after the order denying sanctions, was timely.
CASES IN WHICH REVIEW WAS DENIED
ZURICH AMERICAN INSURANCE COMPANY v. SANDRA DEBOSE; from Harris County; 1st district
(01-08-00717-CV, ___ SW3d ___, 03-26-09, pet. denied Sep. 2009)
(no final judgment, appeal dismissed for want of jurisdiction)
JAY KENNEDY v. ANGELA M. JOHNSON; from Harris County; 14th district
(14-08-00692-CV, ___ SW3d ___, 02-05-09, pet. denied June 2009) (recusal, no appellate
jurisdiction over interlocutory order, finality of order required for ordinary appeal, DWOJ appeal
dismissed)(no interlocutory appeal from order denying motion to recuse the judge) (finality of order
for purposes of appeal)
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