Danny Chapman v. Gary's Pool & Patio--Appeal from County Court at Law of San Patricio County

NUMBER 13-05-587-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

__________________________________________________________________

DANNY CHAPMAN, Appellant,

v.

GARY=S POOL & PATIO A/K/A POOL & PATIO, Appellee.

__________________________________________________________________

On appeal from the County Court at Law

of San Patricio County, Texas.

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MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Hinojosa and Ya ez

Memorandum Opinion Per Curiam

This is an attempted appeal concerning a dispute over the purchase and installation of an allegedly defective spa. Finding that there is no final appealable judgment, we dismiss the appeal for lack of jurisdiction.

Background

Danny Chapman brought suit against Gary=s Pool & Patio a/k/a Pool & Patio (AGary=s Pool@) in justice of the peace court, precinct no. 2, of San Patricio County, for deceptive trade practices in connection with Chapman=s purchase of a spa. Chapman received a verdict in his favor.

Gary=s Pool appealed to county court. Chapman=s answer included, inter alia, a request for attorney=s fees. Chapman moved to dismiss the appeal as untimely. The county court denied this motion on August 4, 2004. Chapman then moved to dismiss the appeal for lack of prosecution and requested forfeiture of the $5,000 appeal bond. On June 16, 2005, the trial court granted Chapman=s motion and dismissed the appeal, but did not address Chapman=s request for bond forfeiture or his request for attorney=s fees. Chapman then moved for entry of judgment and forfeiture of the appeal bond. On September 8, 2005, the trial court held a hearing and, determining that it lacked jurisdiction over the case, denied Chapman=s motions. That same day, Chapman filed a notice of appeal regarding the trial court=s order of August 4, 2004, denying his motion to dismiss, the order of June 16, 2005, dismissing the case without addressing bond, and the trial court=s ruling at the hearing on September 8, 2005, wherein the trial court found it lacked jurisdiction over the case. The trial court=s written order denying the motion for entry of judgment and forfeiture of bond was not rendered until September 14, 2005.

Jurisdiction

Unless one of the sources of our authority specifically authorizes an interlocutory appeal, we only have jurisdiction over an appeal taken from a final judgment. Lehmann v. Har Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); Parks v. Dewitt County Elec. Coop., 112 S.W.3d 157, 161 (Tex. App.BCorpus Christi 2003, no pet.). Absent an express grant of authority, we do not have jurisdiction to review an interlocutory order. Steeple Oil & Gas Corp. v. Amend, 394 S.W.2d 789, 790 (Tex. 1965) (per curiam); see Tex. Civ. Prac. & Rem. Code Ann. ' 51.014 (Vernon Supp. 2005). Therefore, we must ascertain whether the final order at issue in this appeal constitutes a final judgment. Parks, 112 S.W.3d at 161.

A judgment is final if it disposes of all pending parties and claims in the record. Guajardo v. Conwell, 46 S.W.3d 862, 863 64 (Tex. 2001) (per curiam). In cases in which only one final and appealable judgment can be rendered, 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. Lehmann, 39 S.W.3d at 204; Parks, 112 S.W.3d at 161. The law does not require that a final judgment be in any particular form. Lehmann, 39 S.W.3d at 204; Parks, 112 S.W.3d at 161. Therefore, whether a decree is a final judgment must be determined from its language and the record in the case. Lehmann, 39 S.W.3d at 204; Parks, 112 S.W.3d at 161. We acknowledge that an appellate court must not dismiss an appeal for formal defects or procedural irregularities without allowing a reasonable time to correct those matters. See Tex. R. App. P. 44.3. Nor may an appellate court dismiss an appeal if a trial court's erroneous action or inaction prevents the proper presentation of an appeal and can be corrected. See Tex. R. App. P. 44.4(a). In this case, however, the record does not affirmatively reflect that a final judgment was rendered in the case disposing of all claims and parties. The order of dismissal neither addresses Chapman=s request for bond forfeiture nor his request for attorney=s fees. Unaddressed claims and parties properly before the court are not matters we can construe as merely perfunctory or ministerial. In Lehmann, the supreme court stated that an appellate court could abate an appeal if there was uncertainty about the intended finality of the trial court's orders. Lehmann, 39 S.W.3d at 206; see also Tex. R. App. P. 27.2. Here, however, the record reflects that claims remain in the suit and, while the trial court and the parties may have presumed all claims and parties were disposed of, we cannot speculate as to the intended disposition of the remaining claims based on an absence of their mention in the record.

Significantly, we note that there is a dispute between the parties as to the effect of the trial court=s dismissal of the appeal without reference to forfeiture of the appeal bond or other discussion as to the substantive disposition of the case. Chapman contends it was error for the trial court not to award him all of the relief he requested, that is, a judgment including attorney=s fees and forfeiture of the appeal bond. In contrast, Gary=s Pool contends that his perfection of an appeal[1] to county court from a justice court for trial de novo vacated and annulled the judgment of the justice court. See Williams v. Schneiber, 148 S.W.3d 581, 583 (Tex. App.BFort Worth 2004, no pet.). In other words, according to Gary=s Pool, the parties are returned to their original positions and Chapman loses his verdict.

  Conclusion

Our review of the record reveals substantive claims and issues which have not been addressed by the trial court. These matters are not perfunctory or ministerial, and accordingly, we have no authority to abate the appeal to allow a resolution. Parks, 112 S.W.3d at 161. The order at issue in this case is interlocutory, and accordingly, we dismiss this appeal for want of jurisdiction. Any pending motions are likewise dismissed as moot.

PER CURIAM

Memorandum Opinion delivered and filed

this the 19th day of January, 2006.

[1] To perfect an appeal from justice court, an appellant must file an appeal bond with the justice of the peace within 10 days from the date a judgment or order overruling a motion for new trial is signed. Tex. R. Civ. P. 571. In this case, judgment was entered June 16, 2004, but the bond was not filed until March 4, 2004. The bond was apparently mailed to the wrong court, that is, the county court and not the justice court. Chapman moved to dismiss the appeal on grounds the appeal bond was not timely filed, but the county court denied the motion. Whether or not Gary's Pools did file its bond timely is the subject of one of the reporter's records which is not currently part of the record before this Court. If Gary's Pools did not file its appeal bond timely, which is a question of law that is reviewed de novo, then the county court never obtained jurisdiction of the appeal and Chapman's verdict would remain intact. Williams v. Schneiber, 148 S.W.3d 581, 583 (Tex. App.BFort Worth 2004, no pet.). Given the procedural posture of this case, this issue is not properly before the Court and we express no opinion herein regarding the merits of this issue.