Sheldon Harris v. Joy Pearce--Appeal from 87th District Court of Limestone County

IN THE

TENTH COURT OF APPEALS

No. 10-01-379-CV

SHELDON HARRIS,

Appellant

v.

JOY PEARCE,

Appellee

From the 87th District Court

Limestone County, Texas

Trial Court # 25,218B

MEMORANDUM OPINION

Joy Pearce filed a wrongful death suit against the Department of Mental Health and Mental Retardation ("MHMR"), Mexia State School (the "School"), and certain employees of the School after her adult son Robert, a resident of the School, died from the ingestion of medication prescribed for Sheldon Harris, one of the defendant employees. The trial court denied a plea to the jurisdiction filed by MHMR, the School, Evelyn Thomas (Harris's immediate supervisor), and William Lowry (the School's superintendent). In a prior interlocutory appeal, we reversed this judgment and rendered judgment granting the plea to the jurisdiction as to MHMR and the School. See Texas Dep t of Mental Health & Mental Retardation v. Pearce, 16 S.W.3d 456, 461 (Tex. App. Waco 2000, pet. dism d w.o.j.). We affirmed the judgment insofar as it denied the plea to the jurisdiction as to Thomas and Lowry. Id. Harris was not a party to the prior appeal. Id. at 458 n.1.

Consistent with our holding in Pearce, Lowry and Thomas filed a summary judgment motion asserting immunity from liability under section 101.106 of the Texas Tort Claims Act. Id. at 459 (citing Tex. Civ. Prac. & Rem. Code Ann. 101.106 (Vernon 1997)). Harris filed a similar motion. The trial court denied Lowry s and Thomas s summary judgment motion. They perfected an interlocutory appeal which we have docketed under appellate cause number 10-01-231-CV. Harris also filed a notice of appeal which we docketed under our cause number 10-01-379-CV.

Harris now informs us that the trial court has never ruled upon his summary judgment motion. He has filed a motion to dismiss his appeal because there is no appealable order. Rule of Appellate Procedure 42.1(a)(2) provides:

(a) The appellate court may dispose of an appeal as follows:

(2) in accordance with a motion of appellant to dismiss the appeal or affirm the appealed judgment or order; but no other party may be prevented from seeking any relief to which it would otherwise be entitled.

Tex. R. App. P. 42.1(a)(2).

Harris s motion to dismiss for lack of an appealable order complies with the requirements of the appellate rules. The rights of the other parties to these proceedings are adequately protected by the appeal docketed under cause number 10-01-231-CV. Accordingly, this cause is dismissed with costs to be taxed against the party incurring same.

PER CURIAM

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Appeal dismissed

Opinion delivered and filed February 6, 2002

Do not publish

[CV06]