Youngblood, Katherine S. v. Judicial Watch, Inc.--Appeal from 80th District Court of Harris County

Dismissed and Opinion filed August 15, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-02-00590-CV

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KATHERINE S. YOUNGBLOOD, Appellant

V.

JUDICIAL WATCH, INC., Appellee

On Appeal from the 80th District Court

Harris County, Texas

Trial Court Cause No. 01-39380

M E M O R A N D U M O P I N I O N

This is an appeal from a summary judgment order signed on March 4, 2002. On June 24, 2002, appellee filed a motion to dismiss the appeal, claiming that the summary judgment order is interlocutory. We agree, and dismiss the appeal.

Appellant initially filed suit in county court, alleging claims arising from appellant=s employment relationship with appellee. Appellant then filed another lawsuit in the 80th District Court seeking salary and other damages arising from her employment with appellee. On December 13, 2001, appellee filed a motion for summary judgment on all claims asserted in the district court, except for a quantum meruit claim for the period of January 3, 2001 to January 31, 2001. On March 4, 2002, the district court granted appellee=s motion for summary judgment.

On May 9, 2002, appellee filed a motion in the county court to transfer and consolidate appellant=s county court claims with the limited quantum meruit claim still pending in the district court. On May 10, 2002, appellant filed an amended petition in the district court dropping all claims remaining. On May 14, 2002, the county court granted the motion to transfer and consolidate. On June 6, 2002, appellant filed a notice of appeal of the district court=s summary judgment order.

Appellee filed a motion to dismiss in this court, asserting that, because claims remain pending in the district court, the summary judgment from which appellant is appealing is not final and appealable. Accordingly, appellee asks that we dismiss the appeal for lack of jurisdiction. Appellant responds that the judgment is final and appealable. Appellant also filed a motion to strike the motion to dismiss.

A final judgment is one that finally disposes of all remaining claims and parties. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001). Even if the judgment does not dispose of all claims and parties, the language of an order can make it final if that language expressly disposes of all claims and parties. Id. There must be some clear indication, other than the use of the word Afinal,@ that the trial court intended the order to completely dispose of the entire case. Id. at 205. To determine whether an order disposes of all pending claims and parties, the appellate court may need to look to the record in the case. Id. at 205-06. In Lehmann, the order did not dispose of all pending claims and parties, and the order contained no indication that the trial court intended to dispose of the entire case. Id. at 206. Accordingly, the supreme court found the judgment was not final and appealable. Id.

The order in this case is entitled APartial Summary Judgment,@ and specifically states that it is granting judgment of appellant=s claims of breach of contract, quantum meruit, unjust enrichment, fraud and misrepresentation, fraudulent inducement, estoppel, and waiver. Regarding the quantum meruit claim, the order states that judgment is granted for all time periods except January 3, 2001 to January 31, 2001. Thus, the language of the order indicates that at least one claim is not adjudicated by the summary judgment order. No language in the order suggests the trial court intended to dispose of the entire case. Thus, because there is at least one claim pending, the judgment cannot be final. Furthermore, the county court granted a motion to transfer appellant=s case pending in county court to the district court for consolidation with the quantum meruit claim still pending in district court. Appellant does not dispute that these claims from the county court case also remain pending as they were not before the district court when it granted the partial summary judgment.

Appellant contends the March 4th order is final and appealable because she filed an amended petition on May 10th withdrawing all pending claims. The Supreme Court addressed a similar situation in Farmer v. Ben E. Keith Co., 907 S.W.2d 495 (Tex. 1995). There, the trial court granted a partial summary judgment by order dated December 17, 1992. Id. On April 19, 1993, the appellant filed a supplemental petition abandoning the claim not addressed in the summary judgment order. Id. at 496. On August 16, 1993, the trial court entered an order purporting to be a final judgment. Id. On September 15, 1993, the appellant perfected his appeal. Id. The court of appeals had dismissed the appeal as untimely filed, finding that the appellate timetables began to run from the date of filing of the supplemental petition. Id. (citing Farmer v. Ben E. Keith Co., 886 S.W.2d 492 (Tex. App.BFort Worth 1994), rev=d, 907 S.W.2d 495 (Tex. 1995)). The supreme court disagreed, noting that appellate timetables run from the signing date of whatever order makes the judgment final, i.e., whatever order disposes of the pending parties or claims before the trial court. 907 S.W.2d at 496. The appellate timetables do not commence to run other than by signed, written order, even when the signing of such an order is purely ministerial. Id. Thus, the supreme court found that the August 16th order was the trigger for the appellate timetable and found the notice of appeal timely. Id. at 496-97. See also Molina v. Kelco Tool & Die, Inc., 904 S.W.2d 857 (Tex. App.BHouston [1st Dist.] 1995, writ denied)(overruling motion to dismiss for lack of jurisdiction where trial court signed partial summary judgment order on September 15, 1993, amended petition dropped pending parties filed on September 16, 1993, final judgment granted by order on October 13, 1993, and notice of appeal filed November 12, 1993).

As we have held previously, the March 4th order is interlocutory because it did not adjudicate all claims. Although appellant attempted to abandon the remaining claims by filing an amended petition dropping the pending claims, the appellate timetable for perfection of appeal does not run from the date of the filing of a pleading. The appellate timetable begins to run from the date of a signed, final judgment or a signed order that renders a partial judgment final. Farmer, 907 S.W.2d at 496. The trial court in this case has not yet signed a final judgment.

Because the summary judgment order in this case is not final and appealable, we grant appellee=s motion and order the appeal dismissed. We further deny appellant=s motion to strike the motion to dismiss.

PER CURIAM

Judgment rendered and Opinion filed August 15, 2002.

Panel consists of Justices Yates, Seymore, and Guzman.

Do not publish Tex. R. App. P. 47.3(b).