Johnny H. Gee and Abiodun Henri Lagoye v. Etan Mirwis, Terry H. Sears, Victoria Woods Condominium Homeowner's Association, Genesis Community Management Inc., Genesis Property Management Inc., William C. Devane, and Lloyd's of London Insurance Company--Appeal from 270th District Court of Harris County

Opinion issued March 30, 2006

Opinion issued March 30, 2006

 

 

In The

Court of Appeals

For The

First District of Texas

 

NO. 01-04-00883-CV

 

JOHNNY H. GEE AND ABIODUN HENRI LAGOYE, Appellants

V.

ETAN MIRWIS, MICHAEL ALEXANDER, KIT SNYDER, AVI BEN MEIR, GENESIS COMMUNITY MANAGEMENT INC., TERRY H. SEARS, LLOYD S OF LONDON INSURANCE CO., GENESIS PROPERTY MANAGEMENT INC., FEDERAL INSURANCE COMPANY, COLONY INSURANCE COMPANY, WILLIAM C. DEVANE, AND VICTORIA WOODS CONDOMINIUM HOMEOWNERS ASSOCIATION, Appellees

 

 

On Appeal from the 270th District Court

Harris County, Texas

 

Trial Court Cause No. 2002-37636

 

 

MEMORANDUM OPINION

Appellants, Johnny H. Gee and Abiodun Henri Lagoye, challenge the trial court s rendition of summary judgment in favor of appellees, Etan Mirwis, Michael Alexander, Kit Snyder, Avi Ben Meir, Terry H. Sears, William C. DeVane, Genesis Community Management Inc., Genesis Property Management Inc., Lloyd s of London Insurance Co., Federal Insurance Company, Colony Insurance Company, and Victoria Woods Condominium Homeowners Association. In nineteen issues, appellants contend the trial court erred in granting summary judgment for appellees because (1) genuine issues of material fact exist as to each of appellants claims and (2) appellees summary judgment motions were defective. We conclude that the appeal is untimely and therefore dismiss for lack of jurisdiction.

Background

Appellants are condominium owners who experienced flooding in their units. After appellees refused to rebuild and refurbish their units, appellants filed suit alleging deceptive trade practices, conspiracy, breach of contract, fraud, gross negligence, breach of fiduciary duty, and several other causes of action. Mirwis, Sears, DeVane, Genesis Community Management, Genesis Property Management, Lloyd s, and Victoria Woods were served with citation and filed answers. Alexander, Snyder, Meir, Federal Insurance Company, and Colony Insurance Company were not served and did not file answers or any other pleadings or motions.

The served defendants subsequently moved for summary judgment. On January 21, 2004, the trial court granted Lloyd s no-evidence summary judgment motion on the ground that there was no evidence that [Lloyd s] ever issued any policy of insurance to Victoria Woods Condominium Homeowners Association on which Abiodun H. Lagoye is listed, named or recognized as an assured. One week later, the trial court granted the summary judgment motions filed by Mirwis, Sears, DeVane, Genesis Community Management, Genesis Property Management, and Victoria Woods, and rendered take-nothing judgments against appellants. Lloyd s subsequently filed an amended no-evidence summary judgment motion regarding the conspiracy claim, which the trial court granted on May 27, 2004.

Appellants filed their first notice of appeal on February 12, 2004, stating that the district court has granted Interlocutory No Evidence Summary Judgment to all the defendants in this titled and numbered cause. Because appellants failed to adequately respond to our notice that the appeal was subject to dismissal for failure to pay the required fees, we dismissed the appeal on April 16, 2004. Appellants filed their second notice of appeal on August 13, 2004, stating that the Summary Judgment order and all other orders in this cause is [sic] final.

Appellees moved to dismiss the appeal as untimely. We ordered appellants to supplement the clerk s record with documents demonstrating the disposition of each party and each claim, but appellants failed to do so. As a result, we ordered the parties to brief the issue of whether the trial court s May 27, 2004 order is final as to all parties and all claims. After considering the parties briefs and carefully reviewing the record, we conclude that the May 27, 2004 order is the final judgment in the case and that the appeal is therefore untimely.

Analysis

The time for filing a notice of appeal is jurisdictional in nature, and absent a timely filed notice of appeal or extension request, we must dismiss an appeal for lack of jurisdiction. See Tex. R. App. P. 2, 25.1(b), 26.3; see also Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (discussing timing requirements for filing notice of appeal). Generally, a party must file a notice of appeal within thirty days after the trial court signs the final judgment.[1] See Tex. R. App. P. 26.1; Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2000) ( [T]he general rule, with a few mostly statutory exceptions, is that an appeal may be taken only from a final judgment. ).

[A] judgment issued without a conventional trial is final for purposes of appeal if and only if either it actually disposes of all claims and parties then before the court, regardless of its language, or it states with unmistakable clarity that it is a final judgment as to all claims and all parties.

. . . .

. . . Because the law does not require that a final judgment be in any particular form, whether a judicial decree is a final judgment must be determined from its language and the record in the case.

. . . .

. . . [Indeed, t]he record may help illumine whether an order . . . may be final despite some vagueness in the order itself . . . .

Lehmann, 39 S.W.3d at 192 93, 195, 206.

Appellants first amended original petition, the live pleading in the case, names twelve defendants: (1) Etan Mirwis, (2) Michael Alexander, (3) Kit Snyder, (4) Avi Ben Meir, (5) Genesis Community Management Inc., (6) Terry H. Sears, (7) Lloyd s of London Insurance Co., (8) Genesis Property Management Inc., (9) Federal Insurance Company, (10) Colony Insurance Company, (11) William C. DeVane, and (12) Victoria Woods Condominium Homeowners Association.[2] The first amended original petition alleges the following grounds for action : (1) violation of numerous subsections of the Victoria Woods Condominium Homeowners Association s Declaration of Covenants; (2) violation of numerous subsections of the Victoria Woods Condominium Homeowners Association s Bylaws; (3) gross negligence and willful misconduct; (4) commingling of appellees personal affairs with the Association s affairs, thereby depriving appellants of the rights and benefits of the Association s clubhouse and swimming pool; (5) DTPA violations; (6) refusal to pay insurance claims without conducting a reasonable investigation; (7) lack of good faith in effectuating prompt, fair, and equitable settlement of claims in which liability is reasonably clear; (8) illegal claims proceedings; (9) failure to present any offer to correct damages to appellants property caused by appellees failure to perform specific acts; (10) failure to promptly provide a reasonable explanation of the basis in the insurance policy for failure to offer a settlement; (11) favoritism in settling another homeowner s claim similar to appellants claims; (12) breach of contract; (13) breach of fiduciary duty; and (14) conspiracy.

On January 28, 2004, the trial court granted the summary judgment motions filed by Mirwis, Sears, DeVane, Genesis Community Management, Genesis Property Management, and Victoria Woods. The court signed take-nothing judgments against Gee and Lagoye with respect to all six defendants. These twelve orders thus dispose of every claim asserted by appellants against Mirwis, Sears, DeVane, Genesis Community Management, Genesis Property Management, and Victoria Woods, leaving only the claims against Lloyd s, Alexander, Snyder, Meir, Federal Insurance Company, and Colony Insurance Company.

The trial court entered two orders with respect to Lloyd s. The first order, signed January 21, 2004, grants Lloyd s no-evidence summary judgment motion on the ground that Lloyd s did not issue any policy of insurance to Victoria Woods Condominium Homeowners Association on which Abiodun H. Lagoye is listed, named or recognized as an assured. As appellants claims against Lloyd s are based on their assertion that Lagoye s water damage is covered by the insurance policy Lloyd s allegedly issued to Victoria Woods, the court s January 21, 2004 order disposes of every claim against Lloyd s except the conspiracy claim. The trial court granted Lloyd s amended no-evidence summary judgment motion concerning the conspiracy claim on May 27, 2004. This leaves only the claims against Alexander, Snyder, Meir, Federal Insurance Company, and Colony Insurance Company.

These five remaining defendants were never served; nor did they file an answer or any other pleadings or motions. Nothing in the record indicates that appellants ever expected to obtain service upon these five defendants. Moreover, after the trial court granted Lloyd s amended no-evidence summary judgment motion, appellants filed this appeal, stating that the Summary Judgment order and all other orders in this cause is [sic] final. Although we requested supplemental briefing concerning the finality of the May 27, 2004 order, appellants have not indicated that they expect to serve the remaining defendants.[3] Hence, like the Texas Supreme Court in M.O. Dental Lab v. Rape, we hold that the case stands as if there had been a discontinuance as to [the unserved parties], and the judgment is to be regarded as final for the purposes of appeal. 139 S.W.3d 671, 674 (Tex. 2004) (quoting Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 232 (Tex. 1962)) (holding summary judgment order that disposed of all named parties except one who had never been served was final for purposes of appeal based on record revealing (1) unserved party never filed any motions or pleadings and (2) plaintiff had no intention to serve unserved party); Galley v. Apollo Associated Servs., 177 S.W.3d 523, 526 n.1 (Tex. App. Houston [1st Dist.] 2005, no pet.) (same).

We therefore conclude that the trial court s May 27, 2004 order is the final judgment in the case because it disposes of the only remaining claim (conspiracy) against the only remaining party (Lloyd s).

A judgment that finally disposes of all remaining parties and claims, based on the record in the case, is final, regardless of its language. A judgment that actually disposes of every remaining issue in a case is not interlocutory merely because it . . . refers to only some of the parties or claims. Thus, if a court has dismissed all of the claims in a case but one, an order determining the last claim is final.

Lehmann, 39 S.W.3d at 200. As appellants did not file their notice of appeal until August 13, 2004[4] seventy-eight days after the trial court signed the final judgment we lack jurisdiction to review that judgment.[5]

Conclusion

We conclude that appellants failed to timely file their notice of appeal. We therefore dismiss the appeal for lack of jurisdiction. All outstanding motions are dismissed as moot.

Jane Bland

Justice

Panel consists of Justices Taft, Higley, and Bland.

 

[1] If a party timely moves for a new trial, to modify or reinstate the judgment, or requests findings of fact and conclusions of law following a bench trial, the time to file an appeal extends to ninety days after the trial court signs the judgment. See Tex. R. App. P. 26.1(a)(1) (4). Here, appellants did not file any post-judgment motions that would have extended the appellate timetable.

[2] Appellants had named another individual, Anis Rahman, as a defendant in their original petition, but they removed him from their first amended original petition.

[3] In their supplemental brief, appellants assert that the summary judgment orders are interlocutory because the trial court subsequently entered two orders setting the case for trial. Appellants attach these orders as exhibits to their supplemental brief. The orders, however, are not part of the record. Nor did appellants supplement the record with these orders when given the opportunity to do so. As these orders are not part of the record, we do not consider them on appeal. See Guajardo v. Conwell, 46 S.W.3d 862, 864 (Tex. 2001) (refusing to consider order purportedly signed by trial court because it was not included in clerk s record).

[4] We do not consider appellants February 12, 2004 notice of appeal to be a prematurely filed notice of appeal pursuant to Texas Rule of Appellate Procedure 27.1(a) for several reasons. See Tex. R. App. P. 27.1(a) ( In a civil case, a prematurely filed notice of appeal is effective and deemed filed on the day of, but after, the event that begins the period for perfecting the appeal. ). First, appellants have not argued that Rule 27.1(a) applies. Second, we dismissed the appeal on April 16, 2004, for failure to pay the required fees. Finally, the earlier notice of appeal purported to be from an interlocutory order, not a final judgment.

[5] Appellants did not move for an extension of time to file their notice of appeal; nor was their notice filed in time for us to imply a motion to extend time. See Tex. R. App. P. 26.3 (allowing motion for extension of time to file notice of appeal within fifteen days of notice s due date); Verburgt v. Dorner, 959 S.W.2d 615, 615, 617 (Tex. 1997) (implying motion to extend time to file perfecting instrument when party in good faith files perfecting instrument within time period to move for extension).