Saudi Refining, Inc. v. Susan Combs, Successor-In-Interest to Carole Keeton Rylander, Comptroller of Public Accounts of the State of Texas, and Greg Abbott, Successor-In-Interest to John Cornyn, Attorney General of the State of Texas

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-07-00379-CV

Saudi Refining, Inc., Appellant

v.

Susan Combs, successor-in-interest to Carole Keeton Rylander,
Comptroller of Public Accounts of the State of Texas, and Greg Abbott,
successor-in-interest to John Cornyn, Attorney General of the State of Texas, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
NO. D-1-GN-99-004227, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING

MEMORANDUM OPINION

This appeal arises from a franchise tax refund case that was fully and finally decided

on cross motions for summary judgment in 2003. Although the final judgment had been entered in

2003, the case remained pending in the district clerk’s records. Because the parties took no further

action, it was placed on the dismissal docket for want of prosecution in 2006. The district court

signed an order retaining the case in 2007. Ultimately, because that retention order was signed after

the court’s plenary power had expired, the case was dismissed for want of jurisdiction.

Appellant Saudi Refining, Inc. filed its notice of appeal from the 2007 order

dismissing the case for want of jurisdiction. Appellees Susan Combs, Successor-in-Interest to Carole

Keeton Rylander, Comptroller of Public Accounts of the State of Texas; and Greg Abbott,
Successor-in-Interest to John Cornyn, Attorney General of the State of Texas filed a motion to

dismiss the appeal for want of jurisdiction. We will grant the motion.

In 2002, the parties filed traditional motions for summary judgment pursuant to Texas

Rule of Civil Procedure 166a. Appellant’s motion specified that it sought judgment on its “entire

claim against the Comptroller.” On January 23, 2003, the district court signed an order granting

summary judgment in favor of appellees and denying appellant’s motion. Both parties considered

this order to have been final and appealable. No appeal was taken.

Almost four years later, the parties received a notice of intent to dismiss the case for

want of prosecution. Appellant filed a motion to retain, noting that “the Court apparently d[id]

not consider the matter to be completely resolved.” The district court granted the motion to retain

on March 27, 2007.

The next month, appellees filed a motion to dismiss the case for want of jurisdiction

because the court’s order retaining the case on the docket was signed four years after its plenary

power expired. See Tex. R. Civ. P. 306a, 329b. Appellant responded that the 2003 order was not

final because there was no determination of the court costs prayed for by appellees. On June 15,

2007, after concluding that the 2003 order disposed of all claims and parties and was final, the

district court signed an order dismissing the case for want of jurisdiction. On July 5, 2007, appellant

filed this appeal, which appellees have sought to dismiss.

In response to appellees’ motion to dismiss, appellant renews its argument that the

2003 order is not final because it does not address court costs. But a trial court is not required to

assess costs for a judgment to be final. Straza v. Friedman, Driegert & Hsueh, L.L.C., 124 S.W.3d

404, 406 (Tex. App.—Dallas 2003, pet. denied); City of Marshall v. Gonzales, 107 S.W.3d 799, 803

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(Tex. App.—Texarkana 2003, no pet.); Thompson v. Beyer, 91 S.W.3d 902, 904 (Tex. App.—Dallas

2002, no pet.) (citing City of West Lake Hills v. State, 466 S.W.2d 722, 727 (Tex. 1971) (concluding

that trial court retained jurisdiction for thirty days over judgment that did not adjudicate costs)). A

summary judgment is final for purposes of appeal if it “actually disposes of every pending claim and

party” before the court. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001). Here, the

2003 order disposed of all parties who were before the court and all claims, thus it was final.

“[A]ppellate courts will not review judgments in cases where no actual controversy exists between

the parties other than a determination of costs.” Metal Enters., Inc. v. Don Love, Inc., 562 S.W.2d

892, 893 (Tex. Civ. App.—Houston [1st Dist.] 1978, writ ref’d n.r.e.) (citing City of West Univ.

Place v. Martin, 123 S.W.2d 638 (1939)); see also Beyer, 91 S.W.3d at 904 (noting that “a request

for costs is not itself a ‘claim for affirmative relief’”).

Appellant’s notice of appeal, filed more than four years after the district court’s final

order on the cross motions for summary judgment, did not invoke our jurisdiction. See Tex. R. App.

P. 26.1, 26.3. Accordingly, we dismiss this appeal for want of jurisdiction. See Tex. R. App. P.

42.3(a); Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997); Salas v. State Farm Mut. Auto. Ins.

Co., 226 S.W.3d 692, 697 (Tex. App.—El Paso 2007, no pet.).

__________________________________________

W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices Puryear and Waldrop

Dismissed for Want of Jurisdiction

Filed: October 12, 2007

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