IN THE
TENTH COURT OF APPEALS
No. 10-05-00417-CV
KAREN HALL,
Appellant
v.
cITY OF bRYAN, Texas ,
Appellee
From the 272nd District Court
Brazos County, Texas
Trial Court No. 04-002226-CV-272
ORDER DENYING MOTION TO DISMISS
Appellant Karen Hall appeals the trial court’s grant of the City of Bryan’s motion for summary judgment. On August 12, 2005, the trial court signed an Order Granting Defendant’s Motion for Summary Judgment. On that same day, the trial court sent a letter stating that this Order was “necessarily interlocutory” because two parties had intervened as pro se Intervenors-Plaintiffs and the City’s motion appeared to have been directed only toward Hall. The letter further stated: “Due process requires that the intervenors be put on notice that their claims may be adjudicated before such an adjudication take place (particularly where intervenors are pro se).” The trial court then signed a final summary judgment on August 17, 2005, ordering that “Plaintiff Karen Hall take nothing against Defendant City of Bryan, that all claims asserted by Plaintiff are denied,” and that it “disposes of all parties and all claims and is appealable.” Hall filed a motion for new trial on September 16, 2005, within thirty days of the August 17 final judgment, but not within thirty days of the August 12 order. She filed her notice of appeal on November 15.[1]
The City’s motion to dismiss for want of jurisdiction asserts that because the prayer in its summary judgment motion requested alternatively “that all relief prayed for by Plaintiff and Intervenors be denied,” the Intervenors-Plaintiffs were on notice that summary judgment was being sought against them as well. But we agree with Hall and the trial court that its August 12 order granting summary judgment was interlocutory. Unlike the August 17 final summary judgment, nothing in the order’s language unequivocally expresses an intent to finally dispose of the case. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001). The trial court’s letter confirms the absence of such intent.
The motion to dismiss is denied.
PER CURIAM
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Chief Justice Gray would grant the motion to dismiss. The trial court’s order granted the motion for summary judgment of Bryan. The motion sought a judgment against the intervenors. And the intervenors received “due process” by having received a copy the City’s motion. By August 17, 2005, even the trial court did not believe the intervenors were before him to be resolved. The trial court’s mistaken belief that the first judgment was interlocutory is not binding on this court if in fact it was a final judgment. It was. Accordingly, I would grant the motion to dismiss for want of jurisdiction.)
Motion denied
Order issued and filed April 19, 2006
Do not publish
[1] A motion for new trial must be filed within thirty days after the date that the judgment or order complained of is signed. Tex. R. Civ. P. 329b(a). A notice of appeal must be filed within thirty days after the judgment or order, except that if any party timely files a motion for new trial, the notice of appeal must be filed within ninety days after the judgment or order. See Tex. R. App. P. 26.1(a).
#160; TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Affirmed
Opinion delivered and filed April 14, 2004
[CV06]